The Department of Land and Natural Resources’ effort to generate enough revenue to properly staff its fisheries data collection efforts and commercial marine license (CML) program hit a couple of snags at the December meeting of the Board of Land and Natural Resources. For one thing, the board chose not to raise the license fee for individuals as high as the department’s Division of Aquatic Resources (DAR) staff said was necessary. DAR proposed $150 per license; the board approved a fee of $100 (up from $50).
According to division representatives, the fee hike was necessary because of expected cuts in federal assistance, increasing operational costs, as well as a court ruling barring it from charging non-residents a higher rate for their CMLs than Hawai‘i residents. As a result of that ruling, the division’s revenue dropped by about $150,000 a year. In the past, the division charged non-residents $200 per license and locals $50 per license.
DAR administrator Bruce Anderson said in a press release that the fee increase “will help us with our current needs, including support for new on-line reporting and licensing options to better serve the public.”
However, during the Land Board meeting, DAR’s Alton Miyasaka told the board that if all 4,000 or so current license holders renewed at an increased rate of $100 per CML, the division would still not be able to cover all of its expenses. And those expenses would be even greater if the division was fully staffed, he suggested.
“We have a licensing agent on O‘ahu.
That’s all she does. She takes care of [CML] cards statewide. If she goes on vacation or gets sick, there’s nobody there. We can’t fill the vacant position. Other staff have to fill in,” he said.
Positions that are supposed to be dedicated to conducting recreational fishing surveys, which together with the CML program give DAR a better picture of the total marine catch, are under-funded, he added. “Those people are all part-time now,” he said.
Maui board member James Gomes asked whether any permanent DAR staff could cross-train other staffers to help the division meet all of its needs.
“The problem is that there are insufficient funds,” DLNR director and Land Board chair Suzanne Case replied.
When Kaua‘i board member Tommy Oi asked why the division doesn’t simply charge recreational fishermen more for their licenses, Case pointed out that the division doesn’t have the statutory authority to require recreational fishing licenses at all. “We’re the only state that doesn’t,” Miyasaka added.
Board member Chris Yuen moved to approve the fee increase as proposed by DAR.
“Our people are stuck in this situation that their budget is going down the drain. … I hope if we just pass this, plug a hole in the budget, [we can] fix this with a vessel license in a year,” he said.
Despite Case’s and Miyasaka’s arguments, when it came time to vote, it seemed unlikely that a fee hike to $150 would pass. Based on a recommendation by member Keone Downing to raise the fee to $100, the board voted 4-2 to in favor. Gomes and Oi opposed it because they believed the increase was still too high.
The new fee took effect on January 16.
Vessel License
If DAR and the Land Board get their way, many of the fishers now required to pay $100 for their CMLs won’t have to for very long. At the December board meeting, DAR proposed to take to public hearings new rules establishing a commercial marine vessel license (CMVL). It would cost more than a CML, but would cover any and all fishers aboard a given vessel.
In its report to the board, DAR explained that fishers had been asking for such a license for years “and this request was echoed again during the recent commercial marine license fee increase” hearings.
“The need to have individuals separately licensed under the CML caused problems when random and infrequent visitors or part-time crew members are needed for a commercial fishing trip. It’s not always easy to plan far in advance to get a CML for these people. Now that the fees could potentially be raised to $150 each, the infrequent fisher is less inclined to get an individual CML since they fish so little they would never recover the cost,” the report continued.
Under the proposed rules, a license for a non-longline commercial fishing vessel would cost $400. Licenses for longline vessels would cost $1,500. Miyasaka asked the board, however, to set the non-longline vessel license fee at $300, $100 off the fee in the proposed rules.
“I’m currently in discussions with DOCARE [the DLNR’s Division of Conservation and Resources Enforcement] and fishermen about what the vessel license is and what it’s going to cost. It is a big issue for them. It’s very likely these rules will come before you again,” Miyasaka said.
He noted that he had not discussed the proposed longline vessel license fee with any longliners, and that with an individual CML fee of $100, rather than $150, the CMVL fees would have to be “adjusted” to ensure the program’s costs are covered.
“It will take a little while for the vessel license to be put in place. In the meantime, [fishers] are subject to the fee for individual licenses. … We’re anticipating when the vessel license is in place, most fishermen will choose that option,” he said.
Human Trafficking
While DAR staff acknowledged that the rules it was proposing would likely need to be tweaked, at least with regard to the license fees, members of the public concerned about possible human trafficking in the Hawai‘i longline industry argued that the whole concept of a CMVL is not allowed under state law.
Larry Geller and attorney Lance Collins (representing native Hawaiian Maui fisherman Malama Chun, who disputes the state’s practice of issuing CMLs to foreign fishers not legally admitted to the United States) both told the board that Hawai‘i Revised Statutes allow CMLs to be issued to individuals only, not to vessels. They expressed their concern that should the board ultimately approve rules establishing a CMVL, the state would lose the ability to track longline crew members, most of whom are visa-less foreigners confined to the vessels they work on.
In recent years, reports by the Associated Press and a lawsuit filed by two longline crew members suggest that some of these foreign fishermen are treated little better than slaves.
Currently, each crew member is required to be licensed by the state. While the proposed CMVL rules would eliminate the need for longliners to obtain licenses for each individual on board a vessel, they would still require each licensee to provide DAR with reports on “crew or passengers, and any other relevant information the department may require.”
Even so, Geller argued, “If this administrative rule could be real, it would mean there would be no control whatsoever. There’s no control now, but it would be even less than no control over the fishermen. … They [foreign crew members] could be traded.”
“This has the effect of sprinkling perfume on something that really doesn’t smell very good in the longline industry. It won’t work. To allow the vessels to hire totally unlicensed foreign fishermen is not going to fly. In any case it’s against the statute. … It requires a change in the statute,” he said.
Collins argued that state laws require that marine licenses be issued to “persons” only, and that those persons “be lawfully admitted to U.S.” With regard to the latter, Collins has made similar arguments on Chun’s behalf in an April 2017 petition to the board for a declaratory ruling. While the board denied the petition, the 2nd Circuit Court reversed that decision on December 29.
Collins testified that amendments made in the 1940s to the laws he cited were aimed at the practice back then of hiring fishermen not lawfully admitted to United States. He asked the board to use its powers to “not be complicit in human trafficking.”
“A fleet of approximately 140 fishing boats docks mainly at Piers 17 and 38 in Honolulu. About 700 foreign citizens work on these boats, catching approximately $110 million worth of seafood annually. These foreign workers lack many basic rights guar- anteed under U.S. labor laws. According to U.S.attorney Florence Nakakuni, chief federal law enforcement officer in Hawai‘i, ‘People say … they’re like captives. … But they don’t have visas, so they can’t leave their boat, really,’ ” one of Collins’ court filings states.
“The department has said, and I think in some ways the board has accepted this, all of those [human trafficking] issues are outside of the DLNR. But by licensing per vessel and not requiring every individual from getting a license, it further eliminates any oversight of this industry that has and makes tremendous profit in Hawai‘i … It just takes it one step further way,” Collins told the board.
Geller’s and Collins’ arguments were strong enough to cause Linda Chow, the deputy attorney general advising the board, to suggest that it defer voting on DAR’s request so that the legality of the proposed rules could be determined.
Board member Yuen agreed that DAR should consult with the attorney general’s office, but recommended that the board still authorize DAR to take the rules to public hearings.
“If they [the attorney general’s office] say you can’t do it, the air goes out of the tire,” he said.
He added that the CMVL proposal wasn’t done to shield longline vessels from scrutiny, but was aimed instead at “guys not having to buy a license for every one of his buddies” if they decide after a fishing trip to sell some of their catch.
To address the concerns raised about longline crew tracking, Yuen suggested in- cluding a requirement that owners provide a list of everyone on a licensed vessel. In any case, “to do something is really important for the program. It’s [the CMVL] getting tied up with another issue. I’d like to find a way it doesn’t get tied up with that,” he said.
With that, the board voted to allow DAR to take the proposed rules out to public hearings only if the Department of the Attorney General determined they were legal. The attorney general’s office had not done so by press time.
— Teresa Dawson
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