fishery council members are unfazed let them eat fishcake ... · 8/1/2015 · fishery-induced...

What? Me worry? That was the Alfredeneumanian

response of the appointed federal fisherymanagers to the sobering report that theHawai‘i-based longline fishery is alreadyseeing ecosystem effects from the ever-increasing catch — both here and abroad— of apex predators for the last twodecades.

With market prices for bigeyeremaining high, none of the members ofthe Western Pacific Fishery ManagementCouncil seemed bothered by ominoussigns that major changes are occurring inthe food web deep below the sea surface.

The council’s solution? A call for morestudies (of course).

Our report on the most recent Wespacmeeting leads off this issue, followed by awrap-up of environmental bills that madeit into law this past legislative session.Completing the issue is Teresa Dawson’sregular column on recent actions of theBoard of Land and Natural Resourcesand Robert Cabin’s response to ourreview of his book. (Spoiler alert: he didnot like it.)

fishery-induced reductions in an ecosystem’strophic structure.

Now, 40 percent of the catch by Hawai‘i-based vessels targeting tuna is composed ofunmarketable species, such as escolar (a.k.a.the laxative fish), the fanged noodle known

as snake mackerel, orthe watery-muscledlancetfish (edible if youdon’t mind a squishybite). About 16 yearsago, those fish ac-counted for no morethan 30 percent of thecatch.

When given thechance to questionPolovina after hispresentation at the Junemeeting of the Western

None of the council members seemedparticularly bothered by what pre-emi-

nent marine scientist Jeffrey Polovina justtold them — that there is clear evidencelongline fishers in Hawaiian waters are “fish-ing down the food web.” The term refers to

IN THIS ISSUE

Price: $5.00

Volume 24, Number 2 August 2013

2New & Noteworthy:

Queen’s Treasure, TAUs,And an Albizia Lawsuit

3NMFS Overrides Congress

6Author of Restoring Paradise

Responds to Review

9Board Talk: Scuba Spearfishing Ban,

Maui and Lana‘i Fishing Rules, and More

Let Them Eat Fishcake

to page 3

Fishery Council Members Are UnfazedBy Reported Declines in Tuna Catches

When it comes to environmental issuesaddressed by the 2013 Legislature, re-

peal of the Public Land Development Cor-poration grabbed headlines. That agency,established by the Legislature just two shortyears ago and signed into law as Act 55 of the2011 session, never was so loved by the publicas it was by its creators (chiefly SenatorsDonovan DelaCruz and Malama Solomon).Following last year’s elections, with bothincumbents and challengers hearing an earfulfrom constituents – outraged over the PLDC’sexemption from so many environmental andzoning regulations and angry over its lack oftransparency – the agency was shut down.

PLDC RIP, SPRBs, and SWACs:A Wrap-Up of the 2013 Legislature

The closure was effected by Act 38 (HouseBill 1133, Senate Draft 2). So unpopular hadthe agency become that even its original spon-sors voted to give it the axe.

The bill’s preamble is probably about asclose to an apology as the Legislature has evercome: The exemptions granted to the PLDC,it says, “coupled with the manner in which Act55 was passed, have led to distrust and uncer-tainty of the public land developmentcorporation’s intentions and developmentplans. Despite efforts to allay concerns, manyindividuals and organizations, particularlyenvironmental and native Hawaiian organi-

to page 7

Pacific Lancetfish (Alepisaurus ferox)

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� Environment Hawai‘i ��August 2013

more, the rules require catamaran permittees tobe selected from a waiting list (and KTL was notat the top of that list when it acquired itspermit).

KTL sued in U.S. District Court and lost.Although the company’s monohull/multihullpermit expired last year, KTL appealed to the9th Circuit Court of Appeals.

However, in May, attorneys for KTL and thestate filed a motion asking that the case bedismissed with prejudice. According toDOBOR administrator Ed Underwood, KTLrecently entered into an agreement with theowner of Fun Charters, Inc., which has a validcatamaran permit for Ka‘anapali. Essentially,Fun Charters is leasing Queen’s Treasure fromKTL, he says. He adds that KTL’s owner is stillon the wait list for a permit.

For more on this, read our February 2012cover story and our March 2012 and February2013 New & Noteworthy items, all available athttp://www.environment-hawaii.org.

Albizia Update::::: The county of Hawai‘i issuing a family that owns a vacant lot in Hiloover its failure to trim back an albizia tree thatis hanging over Punahele Street, just a fewblocks from downtown. The huge, heavylimbs create “a known hazard to motorists,pedestrians, residents and users of PunaheleStreet,” the county’s complaint states.

The county’s Department of Public Worksfirst attempted to get the landowners — heirs ofHarold Spencer — to remove the tree lastSeptember, when it issued a notice of violationand order that required removal of the hazardby November 6. An identical NOV was issuedNovember 21, demanding corrective action be

Quote of the Month“No one is trying to make the fish go

away, but it’s happening.”

— Chad Wiggins,The Nature Conservancy

Environment Hawai‘i72 Kapi‘olani StreetHilo, Hawai‘i 96720

Patricia Tummons, EditorTeresa Dawson, Staff Writer

Environment Hawai‘i is published monthly by EnvironmentHawai‘i, Inc., a 501(c)(3) non-profit corporation.Subscriptions are $65 individual; $100 non-profits, libraries;$130 corporate. Send subscription inquiries, address changes,and all other correspondence to Environment Hawai‘i,72 Kapi‘olani Street, Hilo, Hawai‘i 96720.Telephone: 808 934-0115. Toll-free: 877-934-0130.E-mail:[email protected] page: http://www.environment-hawaii.orgTwitter: Envhawaii

Environment Hawai‘i is available in microform throughUniversity Microfilms’ Alternative Press collection (300North Zeeb Road, Ann Arbor, Michigan 48106-1346).

Production: For Color Publishing

Copyright © 2013 Environment Hawai‘i, Inc.ISSN 1050-3285

NEW AND NOTEWORTHY

A publication ofEnvironment Hawai‘i, Inc.

Sailing On: “Ahoy rrrr ye mateys! The Queen’sTreasure be sailin again!” read the June 28message to followers of Queen’s Treasure’sFacebook page.

For about the last year and a half, Ka‘anapaliTours, LLC (KTL), which owns the 65-footluxury catamaran, has been fighting in federalcourt for the right to operate the vessel alongMaui’s Ka‘anapali coast.

In September 2011, the state Department ofLand and Natural Resources’ Division of Boat-ing and Ocean Recreation prevented the com-pany from sailing Queen’s Treasure under itsone-of-a-kind permit that purported to allowthe use of either a monohull or a multihullvessel.

DOBOR argued that the permit shouldnever have been granted because its rules forKa‘anapali don’t allow for such a permit. What’s

OfficersPatricia Tummons

President andTreasurerRon Terry

Vice PresidentTeresa Dawson

Secretary

DirectorsKathy BaldwinDeborah ChangMary EvansonMina Morita

�

�

Volume 24, No. 2 August 2013

taken by January 21. On January 29, yet a thirdNOV was issued, with corrective action to bemade by March 4. All three NOVs indicatedthat fines of $1,000 a day would be imposed ifthe deadline were not met.

The county’s complaint asks for damages of$1,000 a day, starting only on March 4. By June25, when the complaint was lodged with thecourt, the fines would have amounted to$113,000. The county is also seeking to recoverits attorneys’ fees, interest, and other costs.

Even if the county prevails in court, its abilityto collect damages from the owners is not a surething. Property tax records show they last paidtaxes in 2011.

TAUs Are Tossed: Federal Judge LeslieKobayashi has ruled that a Kaua‘i law limitingconstruction of new transient accommodationunits (TAUs) is invalid. In doing so, she agreedwith the argument of Kaua‘i Beach Villas—Phase II that the law, the result of a ballotreferendum, was in conflict with the Hawai‘iSupreme Court’s decision in Kaiser Hawai‘i KaiDevelopment Co. v. City & County of Hono-lulu, better known as the Sandy Beach case.

Environment Hawai‘i published details ofthe lawsuit in our October 2012 issue. For moreinformation and to see the judge’s decision, seethe EH-Xtra item on our website, http://www.environment-hawaii.org.

The albizia tree on Punahele Street in Hilo.

August 2013 � Environment Hawai‘i �

When does a law not mean what it says? Apparently, whenever the National Ma-rine Fisheries Service decides Congress musthave made a mistake.

That is what has happened in the case of theCommerce Appropriations Act that was passedin March. One part of the measure seems tohave been intended to extend for one year (upto December 31, 2013) the congressional au-thority allowing Hawai‘i longliners to getaround international limits on their bigeyetuna catches by entering into agreements withthe U.S.-flagged territories in the Pacific(American Samoa, Guam, and Common-wealth of the Northern Mariana Islands) thatallowed part of the territorial catches to beassigned to the Hawai‘i fleet.

But the final version of the law does notachieve that. Instead of referring to the pro-vision in the previous year’s act that autho-rized this scheme, the 2013 Commerce Ap-propriations Act refers to a differentparagraph having nothing whatsoever to dowith the longliners’ arrangements with theterritorial governments.

That did not prevent the National MarineFisheries Service from going ahead and askingfor public comment on a rule that wouldextend the arrangement through the end of2013. The rule makes no mention of theproblem with the current appropriations act,citing as authority Section 113(a) of the originallegislation. In fact, it goes so far as to claim thatthe earlier law was “continued by” the currentappropriations act, despite the problem withthe language.

After the 2013 law was signed, EnvironmentHawai‘i asked Mike Tosatto, head of thePacific Islands Regional Office of the NationalMarine Fisheries Service, what would happenif Congress didn’t fix its mistake by the timethe Hawai‘i longliners reached the quota allot-ted them by the Western and Central Pacific

Pacific Fishery Management Council, noone did, at first. Council member Ed Ebisuijust grinned for a while. Finally, councilmember and fish auction representative MikeGoto piped up, mainly to say that Hawai‘ifishermen are still making good moneycatching tuna, so the fact that they’re catchinglarge batches of undesirables isn’t reallyanything more than a curiosity.

that detracts from the value of the fisheryitself. It’s more an anomaly than anything tosee an abundance of one species, then adecline, then a reappearance.”

Polovina pointed out that once smallerspecies become more abundant than apexpredators, “you’re going to see a lot of fluctua-tion.”

To Goto’s comments that the fishery isstill doing well economically, Polovinastressed that he and his Pacific Islands Fisher-

Fisheries Commission. They would eitherhave to stop fishing for bigeye or fish in themore distant waters of the Eastern Pacific, heresponded – unless the Western Pacific Fish-ery Management Council could amend itsmanagement plan for pelagic fish to addressthe issue.

When the proposed rule was published inJune, Tosatto was asked again about theproblem that the law that claims to authorizethe rule in fact does no such thing. He repliedthat NMFS lawyers had given his office thegreen light to act as though Congress hadindeed re-authorized the 2012 law.

In its comments, the Hawai‘i LonglineAssociation was generally supportive of theproposed regulations, “insofar as they con-tinue to confirm and implement agreements”authorized by the 2012 legislation.

Its letter, from HLA attorney Jeffrey Leppo,also put NMFS on notice that in addition tohaving the previous agreement to take part ofthe American Samoa bigeye quota, the asso-ciation “will be entering into another qualify-ing … arrangement with American Samoa,Guam, or CNMI in substantially the sameform.”

“Insofar as HLA is able to discern, theproposed rule does not alter in any way theapplicable criteria for a qualifying Section113(a) arrangement. If NMFS intends any-thing different, HLA hereby objects (becausesuch an intent would conflict with applicablelaw and because fair notice of a different intentis not given in the proposed rule).”

Reinitiated Consultation?The only other substantive comments werefrom Catherine Kilduff, the staff attorney forthe Center for Biological Diversity.

“The practical effect [of the proposed rule]is to allow unlimited bigeye tuna fishingthrough agreements transferring territories’

unlimited quota by virtue of a loophole cre-ated by appropriations riders,” she wrote.

“We request that NMFS end overfishingand set catch limits for all fishing within U.S.jurisdiction, including vessels in the longlinefisheries of American Samoa, Guam, and theCNMI. At its meeting concluding June 28,2013, the Western Pacific Regional FisheryManagement Council recommended thatthe Pelagic Fishery Ecosystem Plan beamended to include a 2,000 metric ton bigeyetuna longlime limit for the U.S. Territories…There is no reason not to implement thisrecommendation now via the proposed rule.”

Citing the recent work of Jeffrey Polovinaand Phoebe Woodworth-Jefcoats, Kilduffwrote, “Catch limits for all vessels are impera-tive given the recent science showing thatincreases in fishing in the past 16 years havealtered the Pacific Ocean ecosystem, perhapsirreversibly…. Current fishing levels are un-sustainable and NMFS has a legal and moralmandate to reduce bigeye tuna mortalityimmediately.”

Finally, Kilduff stated that should theproposed rule take effect, NMFS “mustreinitiate consultation on the activity’s effectson endangered species such as the sea birds,sea turtles, and endangered marine mam-mals. The most recent biological opinions donot include fishing effort data from 2011 or2012 — years in which there have been nobigeye tuna limits — and thus this is newinformation triggering reinitiation becausethe effects of the agency action may affectlisted species in a manner or to an extent notconsidered in prior biological opinions.”

— P.T.

NMFS Ignores Letter of the LawIn Extending Bigeye Quota Exemption

For Further ReadingTo learn more about the law giving Hawai‘ilongliners the ability to catch more bigeyetuna than the Western and Central PacificFisheries Commission has allotted them,see our January 2012 cover article, “FederalLaw Gives Hawai‘i Longliners Free Reinto Ignore International Quota.”

Wespac continued from page 1The Hawai‘i longline industry has seen

only an increase in value across the board,Goto said. And as far the continued increasein unmarketable bycatch goes, Hawai‘i is“probably not going to see any significanteffect on the fishery itself, in my opinion,”because large tunas will always retain theirvalue, he said.

Goto admitted that the fishery does haveperiods where it catches vast numbers of non-target species, but “it’s really not something


ies Science Center (PIFSC) colleague PhoebeWoodworth-Jefcoats are trying to point out achange in the structure of the whole NorthPacific ecosystem.

Overall prices for tuna are increasing sub-stantially and the fishery can still turn a profit,so the industry is not concerned it’s seeingmore escolar? Polovina asked Goto.

“It’s always something we’ve been inter-ested in,” Goto said. “Your presentation mayexplain why. ... If the trend is also showing adecrease in apex species, we want to correlateit with effort versus climate change. ... In thepresent, [tuna are] a very viable resource acrossthe board,” Goto replied.

Polovina, however, suggested that the fish-ery might want start finding markets forlancetfish and snake mackerel.

A New Regime“We joke it’s no longer the longline fishery forbigeye. It’s the longline fishery for lancetfish,”Polovina said. In 1996, he said, large apexpredators like tuna and swordfish represented70 percent of observed catches. By 2012, theyrepresented only 40 percent.

What now makes up most of the catch?Mainly, it’s been mahimahi, escolar,lancetfish, snake mackerel, and sickle pomfret.Lancetfish now has a higher catch rate thanbigeye tuna in the longline fishery, he said.

According to Polovina, it’s not easy todislodge apex species (such as blue shark,bigeye and albacore tunas, swordfish, andstriped marlin) from their place in the ecosys-tem.

“One of the things interesting about the[North Pacific] pelagic food web is there’s alot of duplication, replication [in] the foodweb. Many of these apex species have verysimilar diets, so if you remove one or two ofthem, the others would just fill in that voidand the ecosystem wouldn’t change much,”he said.

But if you substantially reduce the topgroup, you will see changes. And judging bythe results of recent ecosystem modeling ofthe longline fishery’s impact on the food weband years of fishery data, Polovina said theecosystem probably has changed.

His model didn’t make a lot of assump-tions — mainly just that large fish eat smallfish and the longliners go after a certain size offish. But it confirmed that the substantialremoval of large fish from an ecosystem resultsin an increase of smaller fish. In the case ofwaters around Hawai‘i, longlining is not im-pacting the food web down to the primaryproductivity level, but it is affecting speciescomposition “orders of magnitude down,”Polovina said.

While foreign vessels account for most of

the tuna catch in the North Pacific, thenumber of sets in the Hawai‘i-based fisheryhas also grown exponentially, tripling overthe past decade and a half. The number ofhooks has quadrupled.

“Moving forward, climate is going to be anissue,” Polovina added. He recently modeledthe impacts of climate change on commer-cially targeted pelagic stocks and found thattoward the end of this century, they willdecline significantly.

“The combined impacts of increased fish-ing effort and future climate change are pro-jected to be additive and accelerate a shift ofecosystem size structure to smaller sizes,” hewrote in a April 2013 Plos One paper he co-authored with Woodworth-Jefcoats (“Fish-ery-Induced Changes in the Subtropical Pe-lagic Ecosystem Size Strucutre: Observationsand Theory”).

“Many of these small fishes have fastergrowth rates and shorter life spans than thelarger fishes and hence may be more respon-sive to inter-annual environmental changes,”they wrote.

To head off or at least minimize the likeli-hood of such a future, Polovina suggestedthat international fishing organizations, per-haps the Western and Central Pacific Fisher-ies Commission, pursue a multi-species fish-ing quota, rather than the current regime ofhaving maximum sustainable yields (MSY)set for each individual species.

Wespac staffer Eric Kingma asked whetherthe Pacific Island Fisheries Science Center, anagency of the National Marine Fisheries Ser-vice, had the ability to develop a multi-speciesMSY on its own. No, Polovina responded. Todo this would require international catch-and-effort information, which the PIFSClacks, he said.

In the end, the council approved a recom-mendation of its staff calling for the PIFSC tomodel changes in the abundance of NorthPacific pelagic fish and how this is influencedby fishing pressure, climate change, andoceanographic factors. The council also askedthe center to consider the development of amulti-species MSY.

So Long, Stingray?Polovina’s talk and the resulting discussioncentered mainly on the decline of commer-cially targeted species. The Plos One paper,however, also points out that pelagic stingraysand oceanic white-tip sharks are in big trouble.The sharp decline in their populations “pre-sents concern of collapse for these species,”they wrote.

Oceanic white-tips are already recognizedas vulnerable to over-exploitation and arecritically endangered in parts of the Atlantic.

In their study, Polovina and Woodword-Jefcoats found that the sharks are declining inthe North Pacific at a rate of 6.9 percent a year.

Pelagic stingrays, however, are generallythought to be one of two species of elasmo-branchs (which include sharks, rays, and skates)facing a low extinction risk due to their lifehistory characteristics, Polovina andWoodworth-Jefcoats wrote. However, theyadded, their data suggest “this may not be thecase.”

One might expect that a decrease in apexpredators — which eat stingrays — wouldresult in an increase in the stingray population.It hasn’t. In fact, catch rates of pelagic stingrayshave steadily decreased, suggesting that fishingmay be killing more stingrays than their natu-ral predators kill, they wrote.

“While this paper has focused on changesin ecosystem structure, it is clear that withincreases in escolar and snake mackerel [catchrates] of 12 and 15 percent per year respectivelyand declines in pelagic stingray and oceanicwhite-tip [catch rates] of 5.4 and 6.9 percentper year respectively, we are also seeing changesin the ecosystem composition with potentialsignificant impacts on ecosystem function,”they wrote.

! ! !

Council Team of ExpertsFinds Pelagic FKW

Population is Growing

In the eyes of Wespac, one of the biggestthreats, if not the biggest threat, to the

Hawai‘i longline fishery is its interaction withendangered false killer whales. If it kills orseriously injures even a small number of whalesin a short time frame, a huge swath of fishingground gets closed off until the NationalMarine Fisheries Service decides to reopen it.

During Wespac’s meetings and those of itsScientific and Statistical Committee, the trueabundance of the animals and the methodsused to calculate it often comes into question.Scientists with NOAA’s protected species divi-sion, however, have stood by their estimatethat there are some 1,500 false killer whales inpelagic waters around the main Hawaiianislands.

Unsatisfied, the council recently convenedits own group of experts, including some of itsSSC members, to produce a new abundanceestimate. No scientists from NOAA’s PacificIslands Fisheries Science Center attended theMarch workshop as they were, coincidentally,at another meeting the days the Wespac groupmet.

Using an age-structured population modeldeveloped by fisheries scientist Ray Hilborn,


the group determined that even with cur-rent levels of take by the longline fishery,Hawai‘i’s pelagic false killer whale popula-tion is likely growing at a rate of about twopercent a year.

“Eighty-five percent of the time, there’s achance the pelagic population is either stableor growing,” Wespac’s Asuka Ishizaki toldthe council at its June meeting.

“In 2010, this model predicts a medianpopulation of 1,858, with a mean of 2,023,”compared to NOAA’s current estimate of1,503, she said.

The group also developed a frameworkfor a risk analysis for false killer whales thatIshisake said could be easily adapted to theinsular and Northwestern Hawaiian Islandspopulations of false killer whales, which areeven smaller than the pelagic population.

Ishizaki said the model “will not replacegetting out into the field and getting data.”

NMFS Pacific Islands Regional Officedirector Mike Tosatto asked what the coun-cil intends to do with the modeling results.

“I don’t know what your goal is,” he said.Ishizaki responded that the council is

looking into asking Hilborn to publish theresults in a peer-reviewed journal. She alsosaid that if NOAA knows with a level ofcertainty that the stock is increasing ratherthan decreasing, perhaps it could factor thatinto its abundance calculations.

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Monk Seal Update

The 200 or so endangered Hawaiianmonk seals living in the Main Hawai-

ian Islands probably eat a tiny percentage ofthe fish biomass here, according to a recentNational Oceanic and Atmospheric Ad-ministration assessment. But they do inter-act regularly with fishermen and their gear.And Jeff Walters, NOAA’s Hawaiian monkseal recovery coordinator, wants fishermento report those interactions so his agency canstart building case files on “trouble” sealsthat may require management, includingrelocation.

During his update to the council at itsJune meeting, Walters noted that six sealshad been hooked on Kaua‘i since January,an average of one a month. Fisherman EdWatamura later testified that a trap fisher-man he knows has documented a seal re-peatedly turning over his traps. Seals havealso been found caught in abandoned nets.

To prevent an increase in such interac-tions, Walters says he’s made outreach hismain priority. NOAA has a new paper onhow much monk seals really eat and their

impact, as well as a four-page-long documenton how to reduce and prevent fishery interac-tions, he said.

“We need to simplify those messages, makethem more accessible,” he continued.

“If there was one message I could get out tofishermen, or anybody: please do not feedmonk seals,” Walters said. He’s heard of somespearfishers giving a monk seal a fish or twowhile they’re spearfishing so the seal will leavethem alone.

shelved proposal to temporarily translocateyoung seals from the NWHI to the MHI.

“It’s pretty clear some people thought trans-location was happening all this time. ... Thatmisconception needs to be better explained,”she said.

Walters admitted that when his agencyannounced it would postpone that program, itgot into the O‘ahu newspapers, but not thoseon the outer islands.

Walters said NOAA plans to expand its

An endangered Hawaiian monk seal entangled in fishing gear.

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“That’s the worst thing you could do,”Walters said, adding that it only habituates theseals to being fed by humans.

“Seal behavior modification is a growingconcern for us,” he said. He added that NOAAis compiling “problem seal” histories of sealsthat have been fed by or otherwise interact withhumans and may need to be captured.

Council member McGrew Rice said somefishermen may not be reporting monk sealinteractions out of fear of being more strictlyregulated.

“[Seals] learn how to pull the bottomfish offthe line ... they get used to it. They do itregularly. ... The fishermen are going to be theones regulated because the monk seal decidedto get smart. ... That’s my fear,” he said.

Walters said he was aware of only threeinstances of monk seals taking bottomfish offlines and that his records show that fishermenwho report interactions are not being pros-ecuted.

“My point is, get the information so we canstart documenting. We have to find a way tocoexist,” Walters said.

Wespac executive director Kitty Simondsrecommended that Walters work withWatamura on reaching out to fishermen.

“Ed talks to the fishermen on every is-land,” she said of Watamura, who chairs thecouncil’s advisory panel.

Council member Julie Leialoha suggestedthat Walters continue outreach on the BigIsland, particularly regarding NOAA’s now-

critter cam researchto Moloka‘i, Kaua‘i,and O‘ahu and willcontinue to study fe-cal DNA and fisheriesinteractions.

A draft plan formanagement of sealsin the MHI is ex-pected to be issuedlater this year and themonk seal recoveryteam, which has beendormant for sometime, is expected toreconvene in Octo-ber, he said.

The two-stage translocation program hasbeen postponed until more managementtools are developed in the MHI, he said. Forone thing, NOAA wants to be able to trackany translocated seals to keep them out oftrouble.

In the meantime, NOAA has filed a permitapplication with the PapahanaumokuakeaMarine National Monument to allow it totake MHI seals to the Northwestern HawaiianIslands to see how they fare.

State and federal agencies have also dis-cussed the possibility of establishing a pro-tected area around Ni‘ihau. That effort is“largely in the hands of the [National Marine]Sanctuary program,” said NMFS Pacific Is-land Regional Office director Mike Tosatto.

“There are a lot of moving parts regardingNi‘ihau. ... Do they affect each other? Sure,”he said.

Council member Alton Miyasaka, a biolo-gist with of the state Department of Land andNatural Resources’ Division of Aquatic Re-sources, said his director, William Aila, “wouldlike to see some monitoring of resources in thearea to base his decision on whether or not itshould be included in the sanctuary.”

! ! !

Dettling, Cabos Lawsuit

A few months ago, the U.S. District Courtdismissed without prejudice a case


brought against NOAA by Hawai‘ifishermen Joe Dettling and Robert Cabos.The two alleged that they lost their fishinggrounds with the establishment of thePapahanaumokuakea Marine NationalMonument and the Pacific Remote IslandAreas monument. What’s more, theyargued that they should have beencompensated along with federallypermitted NWHI bottomfish and lobsterfishers who benefitted from not one buttwo rounds of congressional appropriationstotaling several million dollars.

Dettling sought $1.2 million in compen-sation; Cabos sought $900,000.

On May 31, U.S. District Judge AlanKay found that the men failed to show thatthey were entitled to fish in the NWHI

monument area and thus were entitled tocompensation. Neither had obtained a fed-eral fishing permit, although they fished infederal waters.

“Indeed, plaintiffs’ factual allegationsappear to show that plaintiffs were noteligible for compensation,” Kay wrote in hisdecision.

Kay also found that Dettling and Cabosfailed to exhaust their administrativeremedies.

The two had until June 30 to file anamended complaint, which they did. In it,Dettling is seeking the same amount ofcompensation, but Cabos now wants$1,260,000.

“$6.7 million dollars of Congressionalfunds were used to ... compensate the

federally permitted lobster fishermen whohad their quotas set at zero approximately15 years prior and who had alreadypreviously received compensation forbeing displaced,” they attorneys wrote intheir amended complaint. “NOAAemployees initially told both Dettling andCabos that they were accidentally excludedwhen they disbursed the compensationfunds [and] assured both Dettling andCabos, however, that they would askCongress to allocate additional funds tocompensate Plaintiffs.”

(For more background on this story, seeour August 2012 cover story, “FishermenSeek Belated Compensation for Exclusionfrom Marine Monuments.”)

— Teresa Dawson

Because to date no other writers have toldthe kinds of stories that I think need to be told.Why did I devote most of Restoring Paradiseto the most successful ecological restorationprograms in the islands? As I stated in theintroduction, in part “…because these suc-cess stories demonstrate that at least some ofHawai‘i’s remaining native biodiversity canbe preserved and restored, I hope they willinspire us to do more before it really doesbecome too late.” Whenever possible, I triedto tell these stories through the unfiltered eyesand mouths of the people responsible for theirsuccess.

I also strived to analyze and present my 72.5hours of taped oral interviews as objectively aspossible. For example, one of the questions Iasked everyone was “What role does sciencepresently play in guiding ecological restora-tion in Hawai‘i, and what if any changeswould you like to see in the future?” As I notedin Restoring Paradise, “This question pro-voked the most passionate responses fromalmost all my interviewees.” Some people“emphatically stated that science and scien-tists were of obvious fundamental impor-tance” and “stressed the critical importance ofcarefully recording, monitoring, and assess-ing our management activities.” Others dis-cussed what they perceived as the extremetensions between scientists and resourcemanagers, and how “scientists and resourcemanagers come from and live within twodistinct worlds.” Some questioned the prac-tical relevance of conservation science; oth-

Author Robert Cabin Respondsto ‘Restoring Paradise’ Review

I appreciated Patricia Tummons reviewingmy book Restoring Paradise: Rethinking

and Rebuilding Nature in Hawai‘i in the Julyissue of Environment Hawai‘i, but was sur-prised by her strong negative reaction to thisand my previous book, Intelligent Tinkering.I also found her overall hostility ironic, be-cause a central theme in both my books is theurgent need for more mutual respect, toler-ance, and pluralism in conservation. In otherwords, we’ve got to stop circling the wagonsand shooting at each other.

One of the most informative things Ihave ever done was interview a swath ofHawai‘i’s broader environmental commu-nity. Despite all their differences, many ofthese people similarly lamented that ratherthan engaging in constructive debate and,when necessary, respectfully disagreeing andmoving on, too often we myopically obsesson the relatively few things that divide us. Ihave certainly been guilty of falling into thistrap myself. This is partly why I have be-come increasingly passionate about the needfor those of us who love Hawai‘i to put asideour often petty differences and unite aroundthe many things we virtually all agree canand should be done.

Tummons correctly assumed that I don’tdo this kind of writing for the money. Atleast for me, it’s damn hard work that pro-vides essentially zero fame or fortune inreturn. I also agree that there are many otherpeople who are more qualified to writeabout Hawai‘i than I am. So why do I do it?

ers suggested various reforms that they be-lieved would help make this science morerelevant. Still others said that science is onlyone of many different ways of knowing, andargued that the larger conservation move-ment needed to show more respect for otherknowledge and value systems. In this sec-tion, and throughout the book as a whole,I worked hard to present the perspectives ofeach of the different “camps” on such divi-sive issues in an accurate, even-handed, andnon-judgmental manner.

Tummons repeatedly accuses me of be-ing disrespectful and unappreciative of sci-ence and scientists. I respectfully disagree.In fact, I would maintain that I have bentover backwards in my books and otherwritings to make it clear that these areneither my intentions nor my beliefs. Imust say that it has been extremely gratify-ing for me that the larger expert communityhas appreciated and commended me forthese efforts. I am also proud of the fact thatexcerpts from both of my books have beenpublished in leading scientific and environ-mental magazines, and that these bookshave received such exceptionally kind andcomplimentary reviews (examples of theseare available on my Amazon pages).

I hope that people who read RestoringParadise will gain a greater understanding,appreciation, and respect for other peoplewho may have fundamentally different per-spectives on environmental issues and thecomplex and ever-evolving relationship be-tween humans, nature, and science. More-over, I hope that this pluralism will ulti-mately help catalyze more and better scienceand more and better conservation withinand beyond the Hawaiian islands.

— Robert Cabin— Robert Cabin— Robert Cabin— Robert Cabin— Robert Cabin


Legislature from page 1zations, have expressed support for legislation torepeal Act 55…. While the optimization of theuse of public lands is a meritorious goal …achieving this goal requires a greater respect forexisting laws and procedures….” (For more onthe manner in which Act 55 moved through theLegislature and its final provisions, see the coverarticle in the August 2011 issue of EnvironmentHawai‘i.)

But aside from the PLDC’s repeal, the envi-ronmental measures passed by the 2013 Legisla-ture, for better or worse, generally flew under theradar. Here are some of those that perhapsshould have received more attention than theydid:

! ! !

SPRBs for SWACs

Seawater air-conditioning has captured thelegislators’ collective imagination. Act 238 of

the 2013 session authorizes the state to issue up to$40 million in special purpose revenue bonds fora project that says it will cool the Keahole airportand the nearby Natural Energy Laboratory ofHawai‘i Authority. Act 129 authorizes up to$200 million in SPRBs for a similar Waikikiproject.

SPRBs are not direct grants or loans from thestate. Rather, when a company receives permis-sion to issue the bonds – after approval from thestate Department of Budget and Finance –buyers are attracted by the fact that they pay nofederal income tax on the interest those bondsyield. The bondholders benefit in this manner,so, as a general rule, the companies issuing thebonds get a break on the interest that they haveto pay. The full faith and credit of the state is notat risk, but the state is limited in the total amountof SPRBs it may issue. Consequently, approvalof SPRBs is one way the Legislature has ofproviding indirect support to companies thatlawmakers think will benefit the state economi-cally, environmentally, or socially.

Testimony in support of the two measureswas not plentiful, but it was generally enthusias-tic. Jeff Mikulina of the Blue Planet Foundation(formerly director of the Sierra Club, Hawai‘iChapter) praised seawater air-conditioning as ameans of achieving substantial reductions infossil fuel consumption.

Cord Anderson, a partner in Kona SWAC,LLC (the entity proposing to build the Keaholefacility), claimed his project would replace 23,000barrels of oil a year, reduce potable water use by35 million gallons a year, reduce sewage dis-charge by 15.4 million gallons a year, and reduce“harmful gas emissions of approximately 11,100tons/year.”

Anderson, a grandson of politician D.G.

“Andy” Anderson, has been involved inseveral business ventures, including a fore-closed-upon effort to renovate the iconicIlikai hotel in Waikiki. He has also run afoulof the Board of Land and Natural Resourcesfor the way he has managed state-ownedland in the village of Kailua-Kona. Ander-son, by the way, is a member of the Hono-lulu Planning Commission.

In his testimony, Anderson said his plansincluded “leveraging” unused capacity in anexisting 55-inch pipeline at NELHA. Therewas no testimony from NELHA to indicatewhether such capacity exists.

Anderson’s company, he said, is a subsid-iary of Kaiuli Energy, whose managementteam, he said, “is comprised of Hawai‘ibusiness leaders with the necessary experi-ence critical to the project’s success.” Amongthem are Ray Soon, former head of theDepartment of Hawaiian Homelands, andDarryl Nakamoto, former chief financialofficer of the bankrupt alternative-energycompany Hoku Corporation. (Hoku, bythe way, was also a SPRB beneficiary. As ofmid-July, its stock was selling at 1.66 cents ashare.)

The lone discouraging word came fromHenry Curtis, executive director of Life ofthe Land. He pointed out that the request byKona SWAC for as much as $40 million inSPRBs (Senate Bill 1280) “was filed beforethe company registered” with the Depart-ment of Commerce and Consumer Affairs.(It finally registered on February 5 of thisyear; the DCCA website shows that its solemember is Kaiuli Energy, LLC.)

“Neither company has a workingwebsite,” Curtis said in his testimony. “Nei-ther company has any public informationabout their skill sets, knowledge of SWAC orability to deliver. In the interest of opengovernment, sunshine, and community par-ticipation, we believe their requests for SPRBsare not ripe and should be deferred until thepublic has had adequate time to evaluatetheir proposals and to offer meaningful com-ments to this committee.”

The Waikiki project will save 106,000barrels of oil a year, according to Nakamoto,identified in his testimony as a partner inKaiuli Energy. Nakamoto also claimed itwould reduce potable water use by 157 mil-lion gallons a year and reduce sewage dis-charge by 69 million gallons a year.

Since 2005, the Legislature has autho-rized up to $145 million in SPRBs for yet athird seawater air-conditioning project in-tended to cool downtown Honolulu build-ings. Although Honolulu Seawater Air Con-ditioning, LLC, prepared a stateenvironmental impact statement for the

project in 2009, the necessary federal EIS hasnot been completed. In 2011, a draft federalEIS was panned by the Environmental Protec-tion Agency.

A source at HSWAC told EnvironmentHawai‘i that the company had submitted arevised environmental impact statement tothe Army Corps of Engineers “recently…within the last three months.” Earlier this year,a spokeswoman for the company told PacificBusiness News that the final EIS would prob-ably be available for public comment in Maywith a record of decision in July. At that time,start of construction on the $250 millionproject was anticipated by the year’s end.

! ! !

Shrimp Farm SPRBsTo Fund Retreat from Shore

Climate change and sea-level rise did notget a lot of legislative attention this year.

Two bills, both introduced by Rep. CynthiaThielen, would have set up a Climate ChangeRoundtable (HB 460 and HB 1058) but theyfailed to get so much as a single hearing.

Still, whether they knew it or not, lawmak-ers did come face-to-face with the issue inHouse Bill 1388. Its formal title was “relating tothe issuance of special purpose revenue bondsto assist a processing enterprise,” but a moreappropriate description might be, “helping acompany adapt to rising sea levels.”

The bill, which became Act 128 upon thegovernor’s signature, authorizes the Depart-ment of Budget and Finance to issue up to $1.3million in Special Purpose Revenue Bonds tohelp Sunrise Capital, Inc., move its shrimpfarm operations on Kaua‘i to higher ground.

According to testimony from JamesSweeney, president of the company, the “slowbut relentless” erosion of the coast poses aserious challenge to its operations.

“Over the last year,” Sweeney said inwritten testimony, “the entire west sideshoreline of Kekaha, Kaua‘i, has experi-enced heavy erosion due to unusually highwaves. The increased wave erosion has cre-ated a potential public safety hazard next tothe Kaumuali‘i Highway, which has re-quired emergency action by Kaua‘i Countyto shore up the highway to keep the highwayfrom collapsing. The heavy wave erosion,which is threatening the Kaumuali‘i High-way embankment, is occurring approxi-mately 100 feet further inland than theoceanside boundary of our hatchery prop-erty. The erosion we are experiencing hascompletely undermined over 150 feet ofchain-link security fencing and has com-pletely taken down five, 50-foot tall iron-


wood trees. The erosion … is currently lessthan 20 feet from the edge of our packingfacility and salt-water well.”

The bonds, he continued, will allow thecompany to “immediately protect our facilityand in the long term, plan for the relocation ofthe vital infrastructure which will keep ourcompany solvent.”

! ! !

New Law ExemptsDOT Harbors From

Conservation District Rules

Usually, if the Chamber of Commerceand the Building Industry Association-

Hawai‘i support a bill, you’ll find the SierraClub and the Office of Hawaiian Affairs onthe other side of the fence.

But not in the case of Senate Bill 1207, oneof the measures in the governor’s package. Itmay rank as one of the tersest bills heard thisyear – except for the blank, so-called “shortform” bills – but in terms of its potentialimpact, it could be one of the big contenders.It consists of just one sentence: “Notwith-standing any law to the contrary all workinvolving submerged lands used for state com-mercial harbor purposes shall be exempt fromany permitting and site plan approval require-ments established for lands in a conservationdistrict.”

Now that it has become law, as Act 86 of the2013 Legislature, the state Department ofTransportation is free to ignore any and allConservation District rules that otherwisewould apply to submerged lands. Testifying infavor of the measure was the Department ofTransportation and one member of the public(in an email that indicated his support, butgave no reason). Opposed were not just OHA,the Sierra Club, the Chamber, and the BIA-H,but also the Maui Nui Marine Resource Coun-cil and other members of the public includingone employee of the Department of Land andNatural Resources’ Office of Conservationand Coastal Lands, which administers Con-servation District rules. (She was testifying asa private citizen.)

The BIA-H was not against the idea ofexempting improvements to existing com-mercial harbors from Conservation Districtrequirements, since this “will enable the Har-bors Division to more efficiently implementneeded projects to meet the growing needs ofthe maritime industry.”

“However,” the BIA-H testimony contin-ued, “the language in the bill does not appearto limit the exemption to ‘existing commercialharbor system,’” but instead applies to “allwork involving submerged lands used for state

commercial harbor purposes.”The Chamber of Commerce noted that

even with the exemption, the DOT would stillbe subject to the requirements of the U.S.Army Corps of Engineers, the EnvironmentalProtection Agency, and the Department ofHealth. “As such,” the Chamber said in itswritten testimony, “it is unclear … why theConservation District Use Application pro-cess has been singled out by the Departmentfor an exemption.”

Kimberly Tiger Mills, the DLNR employee,testified that the Conservation District UseApplication process was already streamlined,requiring a decision be made within 180 daysof the application being accepted. “Harborimprovements,” she noted, “are exempt fromCounty SMA requirements, therefore theConservation District Use Application pro-cess may be the only local opportunity inwhich traditional, cultural, and customaryuses may be vetted.”

“For newly designated areas or harbor ex-pansion within the Conservation District,DOT Harbors should not be exemptshould not be exemptshould not be exemptshould not be exemptshould not be exempt from theCDUA process,” she continued. “Submerged,unencumbered public trust lands are used forfishing, gathering, canoe paddling, ocean rec-reation and other activities. I believe thereneeds to be oversight for sustainable use of thenatural resources.”

Passage of the measure was not a slam-dunk. Four senators opposed it on the finalvote: Josh Green, Les Ihara, Laura Thielen,and Russell Ruderman. In the House, 13 “no”votes were recorded. Casting them were MeleCarroll, Lauren Cheape, Beth Fukumoto,Kaniela Ing, Aaron Ling Johanson, Chris Lee,Nicole Lowen, Dee Morikawa, MarcusOshiro, Karl Rhoads, Cynthia Thielen, GeneWard, and Jessica Wooley.

! ! !

Increasing CompensationFor Lease Withdrawals

The third time (at least) is the charm forthis bill, which increases the amount of

compensation that the state may pay to ranch-ers on state land when part of the land theylease is removed before the lease term ends.The origin of the measure, which was incar-nated this year as Senate Bill 5 and became Act234, goes back more than a decade to construc-tion of the realigned Saddle Road on the BigIsland. To mitigate for the loss of palila habi-tat, the state withdrew land high on MaunaKea from several large pasture leases. Underterms of the leases, the land can be withdrawnfor any purpose, with the rent being reducedproportionately.

The affected ranchers, however, claimedthat they were owed more than a simplereduction in rent. They say they still had topay taxes and insurance on the withdrawnland, and that they also suffered by havingto sell off part of their herds at fire-saleprices. Also, per the “Findings” section ofSB 5, “lessees cannot mitigate the long-term, fixed costs associated with operatinga ranch in the way they anticipated whenthe lease was negotiated. Thus, the lesseeshave experienced financial hardship for anextended period of time that is not suffi-ciently mitigated by a reduction in theirlease rent.”

The new law sets up a system for deter-mining the losses that a lessee experiences(whether they involve crops, trees, or live-stock). In the case of livestock, “the [Boardof Land and Natural Resources] shall pay tothe lessee the difference between the ap-praised breeding value and the salvage value,including the cost of transportation to amarket.” Also, the lessee “shall be entitledto compensation for costs attributable tothe diminished use of the leased land.”

Land Board chair William Aila noted inhis testimony that the bill, introduced byClayton Hee, “represents a compromiseposition between the Legislature and the[DLNR] reached last session, and, as such,the Department has no objection to itsreintroduction this session.”

He went on, however, to note that “theconcept behind these measures had the po-tential to impede the state’s flexibility to set-aside portions of state lands for state publicpurposes. Implementation of this measurewill potentially result in the department hav-ing to pay additional costs to pasture andagricultural lessees when lands are withdrawn… Additional expenses include appraisal coststo determine value of breeding livestock,paying the difference between appraised valueand salvage value of such livestock, and reim-bursing lessees for insurance and real propertytax expenditures on lands made subject toeasements.”

! ! !

And Also Worth Noting…Act 120, Lateral Beach Access: Act 120, Lateral Beach Access: Act 120, Lateral Beach Access: Act 120, Lateral Beach Access: Act 120, Lateral Beach Access: This measure(House Bill 17) limits the amount of sand anindividual can take from the beach to prettymuch what sticks to their feet and theirclothes. It also makes permanent a law passedin 2010 that prevents landowners from ob-structing public lateral access along the shore-line and requires the Department of Landand Natural Resources to enforce this.


On June 12, the state Board of Land andNatural Resources approved a request

by the state Division of Aquatic Resources tohold public hearings on some rather restric-tive size and bag limits proposed for severalfish species around Maui and Lana‘i. Al-though DAR’s Alton Miyasaka told the boardhe was aware that a number of commercialfishermen opposed the bag limits, the onlypublic testimony that day came from MelvaAila, wife of Land Board chair William Aila.

As a part-time commercial fisher, she said,she felt commercial fishermen will not be ableto survive under the proposed rules.

For the highly prized uhu, or parrotfish,only two of the four species of uhu found inthose waters could be harvested. And of those,a catch of no more than two a day would beallowed. Currently, there is no uhu bag limit.

DAR proposes to cap catches of anotherpopular species, ulua (a group that includes

DLNR Proposes Strict Size, Bag LimitsOn Fish Catches Around Maui, Lana‘i

B O A R D T A L K

Uhu, pictured here, are essential to healthy reefs but aredeclining in nearshore waters.

several jack and trevally species), to five a day,no more than two of which can be greaterthan two feet in length. The current bag limitfor ulua is 20 fish.

The highest proposed caps — 20 a day —are for aholehole, kole, manini, and u‘u.‘Aweoweo, moi, and paku‘iku‘i catches wouldbe limited to five a day. The limit for moanokea, munu, and mu would be two a day.

Moi currently has a bag limit of 15 per day;there is no bag limit for most of the rest of thelisted species.

Under the proposed rules, no one wouldbe able to possess more than the daily baglimits of any of the fish at any one time.

Why the drastic measures? Simply put,fish stocks in the Main Hawaiian Islands arein trouble.

During a May 23 briefing to the LandBoard on the proposed rule changes, MauiDAR biologist Russell Sparks reported that

since the at least the early 1900s, Hawai‘iresidents have been complaining that therearen’t as many fish as there used to be and thatfishers are using wasteful methods or aresimply overfishing. More recently, in 1998, 57percent of fishers surveyed by the state feltthat Hawai‘i’s fisheries are in terrible or poorshape, Sparks said, adding that catch datasuggest that their feelings are justified.

In the 1900s, coastal commercial catcheswere as high as four million pounds a year. Bythe 1950s, they were a third or fourth of that,he said.

The most rapid decline occurred in the late

Act 233, Graywater Use: Act 233, Graywater Use: Act 233, Graywater Use: Act 233, Graywater Use: Act 233, Graywater Use: This measure (SB454) encourages the use of graywater (fromshowers, laundry, dishwashing – anythingexcept toilets) for landscaping and garden-ing purposes. It also requires graywater sys-tems to conform to the state plumbingcode.

Act 241, Lipoa Point Acquisition: Act 241, Lipoa Point Acquisition: Act 241, Lipoa Point Acquisition: Act 241, Lipoa Point Acquisition: Act 241, Lipoa Point Acquisition: HonoluaBay and Lipoa Point, on the northwesterncoast of Maui, have great scenic and naturalresource value. A couple of years ago, theMaui County Council considered puttingLipoa Point into protective zoning. Thatprompted the owner, Maui Land & Pine-apple, to begin to talk of selling it off fordevelopment into luxury house lots. Theland, the company said, had been pledged assecurity for workers’ pensions; if it weredownzoned, it would lose value – and re-tired workers might well be thrown onto thepublic dole, the company argued.

House Bill 1424 called on the Depart-ment of Land and Natural Resources towork with the private Hawaiian IslandsLand Trust to attempt to negotiate the saleof Lipoa Point so that both the land and thepension fund can be protected. Hundredsof individuals testified in support, as didmembers of the Maui County Council. TheDepartment of Land and Natural Resources

gave qualified support to the measure: “Thedepartment supports acquisition,” statedLand Board chair William Aila, “providedthat the designated management programhas the capacity to manage the property forits cultural and recreational values.”

Act 105, Pesticide Reporting:Act 105, Pesticide Reporting:Act 105, Pesticide Reporting:Act 105, Pesticide Reporting:Act 105, Pesticide Reporting: House Bill673 began life as a pretty gutsy measure. Itwould have required the state Departmentof Agriculture to develop a pesticide-usereporting system and to publish annually areport on pesticide use by geographic area.It would also be required to summarizehealth complaints from pesticide use, re-port on results of investigations done by theDepartment of Health on such complaints(the DOH would also be required to dothese investigations), analyze trends in pesti-cide use, assess the accuracy of reported pesti-cide information, and provide an accountingof the amount and type of pesticides im-ported and used in the state. All pesticidesexcept those deemed to be of minimal healthrisk by the federal government would beincluded in the reporting system.

Several dozen individuals submitted sup-portive testimony, criticizing the bill only forits exemption of the “minimal risk” pesti-cides. But testifying in strong opposition werethe Hawai‘i Pest Control Association, repre-

senting about 80 termite control companies,Alexander & Baldwin and its subsidiary,Hawaiian Commercial & Sugar, the Hawai‘iCattlemen’s Council, the Hawai‘i Crop Im-provement Association, representing most ofthe biotech companies, and the Hawai‘i FarmBureau Federation.

The director of the Department of Agri-culture, Russell Kokubun, said the bill mayhave been well intended, but was “unwork-able, given present staffing and resources.”He noted that the only state in the unionthat has a pesticide reporting requirement isCalifornia, whose reports are some threeyears in arrears.

By the time the bill made it out of bothchambers, it had been watered down sig-nificantly. As Act 105, it requires the DOAto publish on its website “the public infor-mation contained in all restricted use pesti-cide records, reports, or forms submitted tothe department,” except those relating topesticides used “for structural pest control”(not just termite tenting, but also otherkinds of fumigation) or which are legiti-mately withheld from disclosure under thestate’s public records law. It also calls for theLegislative Reference Bureau to provide the2014 Legislature with a report on how otherstates account for pesticide use.

— Patricia Tummons


1960s and early 1970s and catch rates havestayed about the same since then, despitetechnological advances (i.e., scuba, fish find-ers, global positioning systems) that make iteasier to catch fish, he continued.

Still, according to a study comparing re-productive health in the Northwestern Ha-waiian Islands to that in the MHI, it’s unlikelyfish stocks in the MHI will improve withoutaggressive management. Fish larger than 22inches are the main egg producers, and in theMHI, fish that size account for only 3.4percent of the biomass, he said.

“The implications [on] reproductive out-put are huge,” Sparks said. “Basically, it meansno projected output.” Most of the proposedsize limit changes are to protect sexuallymature fish.

The large parrotfish, in particular, needprotection.

“Uhus ... have an important role in coralreef ecosystems, the way they graze and stimu-late coralline algae. We need to have largeparrotfish in shallow reef environments,” hesaid.

The decline in uhu numbers in nearshorewaters coincides with changes in fishing meth-ods, he continued.

“Right around the late 1970s and early1980s, spear fishing came into the mix. Priorto that, it was illegal to sell speared fish. Oncethat started, the catch went up dramatically,”he said, adding that today, 58 percent of uhuare caught by spear.

Where parrotfish are scarce, as they are inMakena and Kahekili on Maui, invasive algaemove in, he said.

Continuing the gloomy picture, Sparkssaid that modeling by University of Hawai‘i

marine scientist Alan Friedlander shows thatoverfishing is occurring in the omilu fishery.

“It’s about as bad as you can get. This is afish (a kind of ulua) we have a fair amount ofdata for,” he said.

The proposed caps would affect a rela-tively small number of commercial fisher-men, Sparks contended. Based on commer-cial marine license (CML) data from the pastfour years, he found that most holders don’tsell reef fish. Most CMLs are for pelagic orbottomfish.

However, 412 fishermen statewide re-ported reef fish sales of less than $1,000.Thirteen had sales greater than $20,000. ForMaui, nine fishers reported sales in excess of$1,000 and about how three fishermen hadsales in excess of $10,000, he said.

After Sparks’ presentation, William Aila

asked him whether he had thought abouthow the fishing effort will shift if the LandBoard adopts the proposed rules.

“There’s still a lot of fish that could beharvested. Kala, a lot of weke. So I imaginethose will continue. The uhu and some of theother fish, like the large goatfish ... I don’tknow,” Sparks replied. “Fishermen said theycan no longer do what they’re doing [underthe proposed rules]. They may stop [fishing]or go pelagic. ... There might be a little moreeffort on fish that don’t have bag limits.”

He said that if fisheries improve after therules are imposed, maybe the rules can berelaxed. Also, if DAR notices big shifts ineffort to other species, it might have to comeback to the Land Board to adjust the rulesagain.

! ! !

Land Board ApprovesWest Hawai‘i Fishing Rules

After hearing hours of testimony lastinginto the early evening of June 28, the state

Board of Land and Natural Resources nar-rowly approved a ban on scuba spearfishingin West Hawai‘i. Afterward, a small cadre offishermen, most of them from O‘ahu,huddled outside the Kalanimoku building,where the Land Board met, to discuss whathad just happened.

Worried that such a ban would spread toother islands, they had presented the boardwith video showing large schools of a varietyof fish in waters off West Hawai‘i, suggestingthat fish stocks aren’t as bad as state aquaticbiologist William Walsh says they are. Maybe

researchers had just surveyed a bad patch ofreef, they suggested.

Commercial fisherman Carl Jellings ofNanakuli, former Western Pacific FisheryManagement Council chair Frank Farm, AhaMoku council head for O‘ahu’s Kona districtMakani Christensen, and Phil Fernandez ofthe newly formed Hawai‘i Fishermen’s Alli-ance for Conservation and Tradition, Inc.,among others, all testified against the ban.

But the Land Board also received informa-tion from Walsh that fish stocks in the area,across the board, have seen dramatic declinesover the past few decades — as much as 94percent for some species. And while no stud-ies have been done linking the decline toscuba spear-fishing, the practice has proveddevastating in other parts of the world and isby and large banned throughout the Pacific.

What’s more, Big Island Land Board mem-ber Rob Pacheco just couldn’t get past thediscrepancy in some of the testimony inopposition to the ban: One fishermen saidbanning scuba spear-fishing would put himout of business, although he said later thatscuba spear-fishing accounted for only fivepercent of his catch.

After public testimony ended, Pachecomoved to approve a recommendation by theDepartment of Land and Natural Resources’Division of Aquatic Resources that it accept arule package drafted by the West Hawai‘iFishery Advisory Council, which includedthe scuba spear-fishing ban, to prevent over-fishing.

Outgoing Maui member Jerry Edlao, out-going O‘ahu member John Morgan, and at-large member Sam Gon joined Pacheco insupporting the motion. Land Board chairWilliam Aila and at-large member DavidGoode did not.

Nearly a month later, the status of thoserules — whether they had been sent to thestate Department of Attorney General forreview before going to the governor’s officefor signing — was a mystery to members ofthe public, as well as DAR staff. DLNR publicinformation officer Deborah Ward did notrespond to an inquiry by press time.

A number of people have been askingabout the status of the rule package becausethe most controversial part — the scubaspear-fishing ban — nearly didn’t make itto the Land Board. Aila, who is also DLNRdirector, had initially pulled it. Althoughthe rules were the product of more than adecade of work by the West Hawai‘i Fisher-ies Council and DAR staff, Aila was notconvinced there was enough data to sup-port a scuba spear-fishing ban.

When Walsh briefed the Land Board onthe rules package on May 23, Aila announcedthe ban would not be part of the package thatcame to the board in June. (He also did notallow the public to testify on the matter thatday, in apparent violation of the state Sun-shine Law. The state Office of InformationPractices is investigating.) However, after anumber of Land Board members expressedtheir discomfort with Aila’s decision, hechanged his mind.

When the rules finally did come to theboard, commercial fishermen attacked themfor not being based on local data. Theyargued that scuba spear-fishing is one of themost selective methods of fishing and thatthose who use the gear don’t try to take everyfish off the reef. They also said scuba diversneed to be able to have spears with them toward off aggressive eels or sharks.

The Nature Conservancy’s Chad Wiggins

“It’s about as bad as you can get.” — Russell Sparks, DAR


said that while there are areas of healthy fishpopulations in West Hawai‘i, overall, they’redeclining.

“There was a time when you could fish allday and make a living fishing off Kona.Somebody said nobody is going to take everyfish off the reef. We tried, with roi [an intro-duced species]. ... We used scuba spear-fish-ing. It was very effective. In 11 days, our diveteam — who is not half as good as the peoplein this room — we were able to catch 95percent of the roi on that reef,” he said. “Noone is trying to make the fish go away, but it’shappening.”

He recalled how one scuba spear-fisher-man he met at Puako had filled two and a halfcoolers with fish in just one day.

Wiggins added, “If anyone leaves thismeeting thinking a spear is a good way to stopa shark, that would be a dangerous thing.There are documented events of people being[injured] after spearing a shark.”

Concerned about the impact of a com-plete ban on scuba spear-fishing, board mem-ber Morgan asked whether a two-year banwould be long enough to provide data on itseffect.

At-large board member David Goodeasked Walsh how long he would need togather enough data to determine the impactof the ban.

Walsh said that some species don’t reachsexual maturity until they are several years oldand it may take another several years forpopulations to build. Based on that, he pro-posed a 10-year ban, at minimum.

In any case, he added, his division needs tohave a better ability to know what’s beingcaught.

“We can’t inspect coolers. Unless thataspect is addressed, you can see changes, butcan you link it to spear-fishing,” he said.

Aila suggested that instead of imposing aban, DAR develop a permit for anybody inWest Hawai‘i who spear-fishes. That way,“we know who they are and what they catch.I’m very concerned about unintended conse-quences. I would much prefer seeing what isgoing on,” he said.

Pacheco, however, already seemed con-vinced that scuba spear-fishing had at leastthe potential to devastate West Hawai‘i’sreefs.

“It struck me as curious ... the fishermen,they all seemed to downplay the amount offish being taken through scuba with spear-fishing. In one area, they’re saying it’s not thatbig a take, then they say this is going to make

it so we can’t fish anymore,” he said. Giventhat scuba spear-fishing allows divers to godeeper and stay underwater longer, “they cango out and do some serious damage to a reefpopulation,” he added, pointing to Wiggins’comment about a fisherman taking two anda half coolers worth of fish in one dive, as wellas evidence from around the world.

“Something is missing there for me in thetestimony. This is as pretty potent way forpeople to remove fish,” he said.

To Aila’s suggestion of developing a spear-fishing permit, Walsh said that already, manyof the people who have permits are not

reporting their catches. A recent study com-paring coral-reef dealer reports with catchreports from commercial license holders(CML) found that for the year studied, CMLholders reported catching 71,000 pounds ofuhu, while dealers reported purchasing191,000 pounds. That’s more than 100,000pounds of unreported catch, Walsh said.“That’s the kind of issue you’re going to facewith a permit … and that’s just uhu.”

“I personally think we need to have somedata. Whatever we have in place, you’re notgoing to [see results for 10 years] we might aswell know what they’re catching,” Aila re-sponded.

In any case, because a sunset date on theproposed scuba spear-fishing ban had notbeen discussed during any public meetings or

in public testimony, the Land Board couldnot add one in without taking the rule backout to public hearings, deputy attorney gen-eral Linda Chow said.

When it came time to vote on the ban, itpassed, 4-2.

! ! !

Board Approves RemovalOf Hanapepe Trespassers

Rehabilitating old taro lands is generally agood thing, but the DLNR and the Com-

mission on Water Resource Managementwould prefer that those undertaking suchwork abide by state laws. Ku‘i Palama hasn’tdone that.

A few years ago, Palama restored a num-ber of taro patches on unencumbered stateland and on land owned by Alexander &Baldwin in Hanapepe, Kaua‘i. He also di-verted Hanapepe River without permissionfrom the Water Commission, and gradedand grubbed and installed a cesspool in theConservation District without a Conserva-tion District Use Permit.

An agent with the Land Division onKaua‘i initially offered to work with Palamaon getting him a revocable permit for the 23acres of state land, but Palama claimed healready owned the property.

Last October, the Water Commission or-dered Palama to cease his water diversion, but“Palama claims Kanaka Maoli rights andrefutes the state’s authority over him in the

“Something is missing there for me in the testimony” — Robert Pacheco, Land Board

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On that date, William Aila will be thefeatured speaker at the annual fund-

raising dinner for Environment Hawai‘i. Ailais the chairman of the Board of Land andNatural Resources.

The dinner and silent auction will be heldat the ‘Imiloa Astronomy Center in Hilo.

Tickets are $60 per person, which includesa $20 tax-deductible donation to Environ-ment Hawai‘i. A table of eight may be re-served for $500.

Save the Date: August 23.

To make reservations, call our office at 808 934-0115.Seating is limited; please reserve early.

William Aila

matter,” a Land Division report states. It addsthat the state abstractor found that “at notime in the past did Mr. Ku‘i Palama or hisfamily appear to have an ownership interestin the property.”

So on May 24, the Land Board approveda recommendation by the DLNR’s LandDivision to fine him $5,000 for unauthorizeduse and trespassing on public land, tempo-rarily close the land off to public access, andremove all encroachments, nuisances, andtrespassers.

! ! !

Forest Protection Ramps UpUnder Watershed Initiative

Since its launch in 2011, the DLNR’s ‘TheRain Follows the Forest’ watershed pro-

tection initiative has vastly increased theamount of land protected from destructiveferal ungulates. What’s more, it’s alreadyyielding visible results.

While flying over south Moloka‘i re-cently, “for the very first time, I saw hugeamounts of recovery of native grass andflowers,” at-large Land Board member SamGon said at the board’s July 12 meeting. “Ican’t believe how well the vegetation isrecovering in that area.”

That recovery is due, in some part, toaerial shooting by the department, saidNatural Area Reserves System (NARS) plan-ner Emma Yuen.

Over the last two years, with several mil-lion dollars from the Natural Area ReservesSystem fund and capital improvement projectallocations, some 26,000 acres have beenprotected, Yuen said. That’s nearly a third ofthe initiative’s 10-year goal of protecting90,000 additional acres of forest.

“This is a vast acceleration of what wewere previously able to do,” she said, add-ing that program funding has been used tohelp manage more than 160,000 acres overthe last year.

And the program is continuing to grow.This past session, the Legislature approved$11 million to be spread over the next twofiscal years. Also, the Land Board has re-cently approved a memorandum of agree-ment with the Honolulu Board of WaterSupply to allow the latter agency to contrib-ute funds so the DLNR can carry out water-shed protection activities on county-ownedproperty.

Still, Yuen said the DLNR hopes to se-cure dedicated funding sources.

Yuen expects that with the Legislature’smost recent appropriations, the DLNR willbe able to protect at least another 40,000acres. The Manuka NAR alone, on the BigIsland, will account for 25,000 of that total,she said.

Under the program, an evaluation com-mittee of hydrologists and resource manag-ers choose the best projects submitted by

watershed partnerships, invasive speciescommittees, or other entities for funding.

“We know from multiple governmentsources that based on climatic changes, thenext 30 to 50 years are going to becomedrier. This is trying to be proactive ... toproduce as much water as we can [and] toprotect against the intense storms to come.It’s really a recognition that times are chang-ing,” said Land Board chair and DLNRdirector William Aila.

According to Yuen, it’s also helped inspirenatural resource managers.

“I want to let you know how incrediblymeaningful it is for staff to have such aninitiative. The staff having the knowledgethat this is really engaging the top members ofour state is extremely good for morale,” shesaid. “It’s really a great time for watershedprotection.” — T.D.

fishery council members are unfazed let them eat fishcake ... · 8/1/2015 · fishery-induced...

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