For the last year, the Western Pacific Fishery Management Council has been paying Leimana DaMate to organize a series of meetings, called puwalu, that bring together Native Hawaiians to discuss approaches to managing Hawai`i’s ocean resources.
But has the process, which admittedly has led to the introduction of bills in the 2007 Hawai`i Legislature, stepped over the line to the point it constitutes lobbying by a federal agency? Charges that the council, in supporting this process, was engaging in just such prohibited activity arose in heated testimony at the council’s meeting last month from an observer who had attended an earlier puwalu but who was told she could not attend what was evidently another puwalu held on the first day of the council’s four-day session at the Ala Moana Hotel in Honolulu. That observer, Keiko Bonk of the Northwestern Hawaiian Islands Network, a coalition of non-profits, said she was told by council staff she could not enter the room where the meeting, run by the Leimana DaMate and her husband, Bob, was being held.
“Because the meeting was paid for by public funds and the topics were of interest to me,” she told the council, “I entered the room despite the statement that I was not permitted to do so.”
Inside, Bonk said, she was confronted by the DaMates, who asked her to leave, informing her that “this was a private spiritual meeting to which I was not invited.” Along with Bonk, Tina Owens, a member of the Lost Fish Coalition, was also asked to leave. To avoid confrontation, both women left the room.
Later Bonk said she was informed by one of the participants that the meeting was to advise the participants how to lobby for House Bill 1848, one of the most hotly debated fishery management bills heard by the Legislature this session. In some circles, because of the close identification of the puwalu process with the council, the bill became known as the “Wespac” bill.
Background
Three puwalu were held in the second half of 2006: in August, November, and December. According to the council, the meetings were to “increase participation of the Hawaiian community in the conservation and management of Hawai`i’s resources through the creation of a community and cultural consultation process within the governance structure.”
According to others, however, the process was little more than a sophisticated campaign to obtain the support of Native Hawaiians for legislation that would turn back important advances in the state’s fishery management program, including the recently enacted regulations on lay gill-net fishing.
It was the third puwalu that set the stage for charges that the council was, directly or indirectly, engaging in lobbying activities that, as a federal agency, it is prohibited from undertaking. At that meeting, attendees met with legislators, including House Speaker Calvin Say.
According to a handout prepared by council staff and distributed at the council’s March meeting, “the council’s goal for Hawai`i is the increased participation of the Native Hawaiian community in fisheries under its authority, the formation of aha moku (district councils)… to help shape fisheries policies for Hawai`i and perpetuation of traditional cultural knowledge about fisheries and natural resources.”
At the council’s Fishers’ Forum evening, Charles Ka`ai`ai of the council staff described the puwalu process and its outcome.
“The result,” he said, “was three bills introduced in the Legislature for the aha moku councils.” One bill died, he said, but two made crossover – meaning that they at least passed one chamber and made it to the other for consideration. “There’s a good chance” at least one will pass, he said, and participants in the puwalu process are already organizing for aha moku councils.
Information distributed at the council meeting suggests some aha moku are already up and running. On January 13, “the newly developing Maui aha moku requests Council support in helping to develop their structure.” On February 27, “puwalu participants from Anahola [Kaua`i] asked to meet to help organize the Kaua`i Aha Moku. Many issues were brought up including: … Green sea turtle population has grown too large and needs to be managed to prevent degradation of the forage and reef areas.”
Formal Complaint
On March 14, a day after being kicked out of the council-sponsored meeting, Bonk filed a formal complaint with Sean Martin, chair of the council. Among other things, she charged that:
- The council had paid for airfare and hotel rooms for participants in the private meeting (her source was a participant);
- The council had paid for the meeting room (according to hotel staff);
- The meeting was not noticed to the public or announced in advance;
- The discussion was on ways to support three bills before the state Legislature relating to fishing;
- A council staffer, economist Marcia Hamilton, had denied to Bonk that any council-sponsored meeting, other than the noticed committee meetings, was occurring;
- After entering the meeting, the DaMates told Bonk to leave, informing her it was a “private spiritual meeting.”
“Wespac is a public entity operating with public funds,” Bonk continued in her complaint. “Its meetings are required to be noticed and, in nearly every circumstance, fully open to the public. Wespac is also prohibited from lobbying at either the state or federal levels.”
Bonk asked the council to investigate the circumstances leading up to the private meeting, “including whether they violated anti-lobbying rules and regulations,” and to look into staff actions “related to the funding and organization of the meetings and the exclusion of members of the public” from them.
Her testimony and complaint were politely received, but no one on the council had any comment.
Coincidentally, council member Rick Gaffney announced at the March 14 Executive and Budget Standing Committee meeting that he would be submitting a motion to the full council to amend its Statement of Organization Practices and Procedures to prohibit council members and employees from attempting to influence federal or state legislation, restoring similar language that had been removed in a 202 revision, a March 15 press release by Bonk states.
At the council’s full meeting on Friday, March 16, however, Gaffney decided to defer introducing his motion. Even so, council executive director Kitty Simonds asked Gaffney, who had raised the lobbying issue before, for details.
“Who, what, when, where, why, how? Provide those details,” she said, to which Gaffney responded that he would gladly discuss the details with her. Manny Duenas, a council member from Guam, also asked for similar information.
“I’m very curious as to why these things came about,” he said.
An Explanation
“These allegations are slanderous,” says Leimana DaMate, who, although hesitant to talk without an attorney, recently tried to address some of the claims made in Bonk’s press release.
“They were not kicked out of the meeting,” DaMate says. In a phone interview with Environment Hawai`i, DaMate explained that the meeting at the Ala Moana Hotel, which she said was a planning meeting for kupuna for the next puwalu, was a “very spiritual, bonding meeting,” at which Hawaiian protocol needed to be followed. She said that she tried to explain to Bonk and Owens that she had to get permission from every single kupuna in the room before allowing the two in, but before she could finish speaking, Owens said, “‘Well, I’m spiritual.’ Then they went storming off. They didn’t wait for me to ask [the others],” DaMate said.
When asked whether the meeting had been sponsored by the council, DaMate said that she had no idea. “We asked to use the room to meet and we were given permission,” she said.
As chair of the Association of Hawaiian Civic Clubs’ Ocean Resources Committee, DaMate says, she and her company, Pacific Islands Resource Management Institute (PIRMI) have worked for years toward the education of others on Hawaiian indigenous rights and practices. This includes working on aha moku bills that have been brought before the Legislature, she said.
Last year, DaMate says, she entered into a contract with the council to work with community groups – a requirement, she adds, of the Magnuson-Stevens Act. (A council report on the puwalu process states that PIRMI was contracted by the Office of Hawaiian Affairs to conduct workshops with the Hawaiian community and when the OHA contract expired, the council “retained the services of PIRMI to continue the their work.” DaMate denies that PIRMI ever contracted with the council.)
DaMate explained that, as ocean resources chair for the AOHCC, she had been working with the state Office of Planning and Department of Land and Natural Resources administrator Peter Young for two years on incorporating ahupua`a concepts into state planning. Interested in having a similar relationship at the federal level, she got in touch with the council, she said.
“That’s how we got together. Wespac, through the Magnuson-Stevens Act, is mandated to do ecosystem management. That is directly in line with ahupua`a practices,” she said.
DaMate balks at accusations by Bonk and others that her contractual ties to the council have turned her educational efforts into illegal lobbying. When asked if she had participated in lobbying, DaMate says that she has educated many, including legislators, on ahupua`a concepts.
“If that means going to the Legislature to talk to others about these bills then, yes, of course,” she has done that, she said.
Still, she says, “I’m very curious on what lobbying means,” and asks if it includes talking to her own constituents or submitting testimony.
At the Capitol
On March 19, the state Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs heard HB 1848, House Draft 2. Despite the puwalu held a week earlier that Bonk claimed was aimed at coaching supporters of HB 1848, most of the people who showed up to testify on the bill opposed it.
Among the opponents were several participants in the state Department of Land and Natural Resources program known as Mauka-Makai Watch, who have also been working with the Community Conservation Network, an organization that helps communities throughout the Pacific better manage their ocean resources. They noted that a community-based fisheries management program already exists. What’s more, they argued, the level of science that HB 1848 HD2 would demand as a prerequisite for fishing regulations would effectively put an end to efforts already underway by subsistence fishing communities in Ha`ena on Kaua`i; Miloli`i, Ho`okena, and Honaunau on Hawai`i; Mo`omomi on Moloka`i and in `Ewa, O`ahu.
The HD2 version of the bill states that the DLNR is prohibited from implementing any rule adopted after January 1, 2007 (including the recently adopted and highly controversial gillnetting rules) that limits or prohibits fishing unless it is developed via a previously established community- or area-based subsistence management program; it is based on best available science and native Hawaiian and local fisher knowledge that “clearly demonstrates a correlation between existing fishing practices and a specific conservation problem;” the DLNR has considered other conservation measures including size, bag, and gear limits, or seasonal closures; and the DLNR has determined that enforcement of existing rules is insufficient.
HB 1848 HD2 pushed for the state to provide stock assessments and extraction rates, required the evaluation of all factors that might affect species targeted for protection, required the DLNR to report on the need for closed areas every three years, limited the size of closed areas to be “no larger than can be supported by the best available science and traditional Hawaiian and local fishers information,” and set a sunset date for fishing regulations, provided that the closed area restriction may be reimposed in accordance with the rest of the bill.
Finally, the bill would have established a task force to identify and recommend to the Legislature changes to the DLNR’s fisheries management rules. The task force would be composed of 13 members — two to be designated by the Ali`i Holokai Dive Club; two by Pacific Islands Fisheries Group; two by the Association of Hawaiian Civic Club’s Ocean Resources Committee; one by the Northwestern Hawaiian Islands Bottomfish Hui; one by the Kewalo Keiki Fishing Conservancy; two by the Aha Moku Council; one by the National Oceanic and Atmospheric Administration; one by the Nature Conservancy; and one by the Hawai`i Audubon Society.
Ha`ena subsistence fisher Haleakahau`oli Wichman, whose testimony was read to the committee by Kawika Winter, explained that a mechanism to involve Hawaiians and communities in fisheries management is already in place. Fishers in Ha`ena had begun taking steps to regain local management of their fishery some 10 years ago and with assistance from CCN, and Ha`ena is developing a management plan with the DLNR, she wrote.
“HB 1848, HD2 is bad bill that has misled many people, especially our kupuna, who see it as protecting our Hawaiian fishing rights. What they don’t realize is that this bill will prevent our community from enacting rules and managing the fishery and, even worse, it will stop other communities from working with the DLNR to also develop management plans for their own fisheries. Don’t be fooled by what appears to be good intentions in this bill. The level of science proposed in this bill will effectively stop any future rules and regulations,” Wichman continued, adding that the motivation behind the bill is evident in the make-up of the task force, which is dominated by O`ahu-based fishers.
“[The bill] is not about protecting Hawaiians. It is about protecting special interest groups and allowing continued exploitation of our fisheries. It is a slap in the face to our Hawaiian families who fish for subsistence, not for recreational or commercial purposes, and want to malama our state’s fisheries so that they are healthy and sustainable,” Wichman wrote.
Maka`ala Ka`aumoana, executive director of the Hanalei Watershed Hui, went a step further, and called out the council’s role in the bill. Ka`aumoana said she was hoping the committee wouldn’t hear the bill at all.
“I was hoping to avoid this confrontation,” she said, stating that the bill was “the result of many years of work and intricate planning to grab control of our cultural resources on behalf of commercial interests,” and was promulgated by the council’s executive director Kitty Simonds, the Association of Hawaiian Civic Clubs president Toni Lee, and AOHCC member Leimana DaMate and her husband, Bob, through their affiliations with the council, the AOHCC Ocean Resources Committee, and the Pacific Islands Resources Management Institute. (PIRMI has never registered to do business in Hawai`i. Its website, www.pirmi.org, describes it as a non-profit corporation. Leimana DaMate is listed as its president.)
“The concept is simple: Gather the kupuna, listen to their stories, pay their way, and tell them you are on their side. They will smile and agree with your plan,” Ka`aumoana said of the puwalu and its role in the bill. “This legislation is not about our kupuna. It is not about our ahupua`a. And it has already caused hurt feelings and mistrust in many of our communities. Our kupuna have been shamed,” she said, asking the committee to gut the bill and substitute language supporting community-based management.
She added that by working with various government agencies on the protection of the Hanalei watershed and bay, the watershed hui has “some of the best available data in the state. We have benefited from partnerships with some of the best science around. Our website is loaded with it and we could not nearly meet the criteria expressed in this bill. If that’s the case, then nobody else can, either.”
With regard to the council’s involvement in the bill, Bonk asked the committee to investigate who was involved in the bill’s introduction and again stated her belief that council employees or recipients of grants from the council had participated in the writing and lobbying of HB 1848.
“HB 1848 is a dangerous bill because I believe it is tainted by illegal lobbying,” she said.
When it was her turn to testify, Toni Lee stood and introduced herself to the crowd of about 50 people in the conference room.
“I was the one that was being attacked, [by people] saying I was responsible for some illegal goings on…So I want you to know who I am. I want you to also know, that’s all false. I wish I had that much power,” she said.
Lee stated that the Association of Hawaiian Civic Clubs, which includes 52 clubs and has more than 3,000 members, sponsored the bill, and added that her appointee Leimana DaMate (who did not attend the hearing) has been the association’s ocean resources chair for about four and a half years. Lee did not discuss the council or how the puwalu might have shaped HB 1848.
She did, however, try to shed some light on why the AOHCC decided to introduce legislation. She said that over the last five years, the association had held more than 40 meetings in which ahupua`a- or moku-based management was discussed. Last year, while attending the Legislature, she said she realized that many of the people she met didn’t know about the association.
“And so we thought it was a great idea to have a meeting with the kupuna with the practitioners and traditionalists and fishermen because they should not just be hearing [about region-based management] from us. It should come from the community…,” she said. The AOHCC came up with the aha moku bills, which she said are intended to help the DLNR with the overwhelming task of managing Hawai`i’s natural resources.
“We came forward and said, ‘We want to help. Let us be your eyes and ears. Let us do that for you,’” she said. The bills would direct communities to select members to an aha moku council that would advise the DLNR on natural resource matters.
Regarding the accusations by some that the civic clubs are using kupuna to bolster their position, Lee said, “We’re not. We’re not at all. But let me tell you, the [AOHCC] was moved in regards to the Northwestern Hawaiian Islands. We were told that they would like our input and the [AOHCC] said that they would want the [NWHI] to be a sanctuary. What did it become? A monument. We were used. And then they used our membership to pass that bill. Talk about being used.” [Editor’s note: The Papahanaumokuakea Marine National Monument was established via presidential proclamation, not by legislation.]
Although Lee was silent on how decisions were made at the puwalu, Wai`anae fisherman and DLNR harbormaster William Aila relayed to the committee what Charles Ka`ai`ai of the council staff had told him at the council’s Fishers’ Forum the week before.
Since he had not been invited to the puwalu, Aila said he had this question about how the recommendations from the first puwalu came about, since the Hawaiian civic clubs seemed to be holding the puwalu up as the foundation for the bills they introduced.
“After talking to Charlie Ka`ai`ai…I found out that this was the process: They went around the room. They put things up on the wall – you know how you tape information, you do focus groups and stuff like that — then they said, ‘Anybody have any objections?’ Seeing none, the staff of that puwalu, along with Wespac staff then synthesized those thoughts into a consensus and moved that forward to the second and third puwalus and eventually to the civic clubs to become the foundation,” Aila said.
“I strongly disagree with anything the Hawaiian civic clubs have come out based on that foundation, because that’s not a good foundation. The right way to do it is ask everybody in the room what you agree upon, not, ‘Do you have any objections to what’s on there.’ So let’s be very clear about this process, how it came about, and what’s built on top of that, because it’s a very shaky foundation. And as a fisherman and as a Hawaiian, that is not a traditional way of making decisions,” he said.
It was dark by the time the committee made its decision. In the end, after hours of testimony from nearly 40 people, the committee chose to defer voting on the matter. Two days later, the committee amended the bill by deleting the conditions in HD2 that would have repealed the state’s gillnetting rules and would have set onerous science requirements. The committee also added language to establish a Maka`i o ke Kai program, which would allow communities to play a greater role in the rule-making process and provide state matching funds to communities that have developed reef fish conservation plans.
The committee also changed the makeup of the proposed advisory board to include a marine scientist, Maka’i O Ke Kai participants, native Hawaiian and recreational fishermen, nonprofit organizations, and a NOAA representative.
— Patricia Tummons and Teresa Dawson
April 2007 — Volume 17, Number 10