BOARD TALK: Land Board Tightens Lay Gill Netting Rules, Vows to Continue Dialogue with Fishers, Hawaiians

To some, the state’s proposed lay gill net rule amendments penalize or make criminals of responsible fishermen, infringe on native Hawaiian fishing rights and cultural practices, and lack data supporting the foundational claim that lay gill netting damages marine resources. In the words of one person who testified on the subject at the Board of Land and Natural Resources’ November meeting, the proposed rules are “an invitation to violence.”

Others see the rule amendments as a great step forward toward protecting declining stocks of reef fish and minimizing the chance that endangered monk seals, sea turtles, and corals will become entangled in such nets – as happened to Penelope, the five-month-old monk seal found dead on a Waimanalo beach in October.

To the state Division of Aquatic Resources, which presented the rule amendments to the Land Board for approval on November 17, they were the culmination of more than a decade of disjointed and meandering efforts to restrict the potentially destructive fishing practice. (A gill net is any net that catches fish by trapping them by their gills. The increased use in Hawai`i of monofilament gill nets, which are often strung together and hung like a curtain under water, has been criticized by many for indiscriminately killing non-target species, for damaging corals and seagrass beds, and for removing unsustainable amounts of herbivorous fish that control macroalgae growth.)

At its meeting, the Land Board heard hours of impassioned testimony from some who vowed defiance to any further restriction on fishing and others so desperate to have the measures passed that they were moved to tears. Although various provisions of the rule amendments were criticized by many testifiers as either being too restrictive or not restrictive enough, the Land Board voted unanimously to approve them with a few non-substantive changes. (Land Board member Samuel Gon, who is also a scientist with The Nature Conservancy of Hawai`i, recused himself from voting; TNCH is a partner in the Fair Catch campaign, which recommends a statewide ban on the use of monofilament lay gill nets.)

“We’d love to have more of a consensus than we see today when an important, potentially controversial, issue is brought to us. Clearly, based on what I’ve heard today, this dialogue needs to continue. Whatever decision we make today is not going to be a final destination…[but] is part of an ongoing dialogue, part of a journey,” said Land Board member Tim Johns before making his motion to approve the rule amendments largely as they had been presented during public hearings last July.

Once the new rules are approved by the attorney general and governor’s offices, lay gill netting, which is already banned in Hilo Bay and in several reserves along the Kona coast, will be banned on Maui and three areas around O`ahu, as well as across streams and stream mouths. Soak times, inspection intervals and net lengths will be shorter, and night-setting will be limited to two hours after sunset and before sunrise.

Public Hearings, Again

In July, the DAR held public hearings statewide on the proposed rule amendments, which grew out of public hearings, surveys, and working group discussion over the years. Based on the input gathered this past summer, the DAR presented the rules, with several important changes, to the Land Board for a decision.

For the island of Moloka`i, which, with its tight-knit community and predominantly Hawaiian population, has been touted as a model for community-based fisheries management, the DAR proposed special rules that had been drafted by the island’s residents. Those would have allowed nets up to 750 feet long; soak times of up to 12 hours (including at night) within a 24-hour period; minimum distances between nets at 1,320 feet; and inspection of nets just twice during the entire soak time. (The division had originally proposed a maximum net length of 125 feet, a maximum soak time of four hours, practically no night setting, and net inspections every 30 minutes.)

Responding to community requests that the state prove its measures actually work, the DAR also proposed that the rules banning lay gill nets around Maui and O`ahu expire, or “sunset,” after five years unless they are deemed by the Land Board to be necessary beyond that time. In addition, the rules would have authorized the Land Board to establish or amend prohibited areas at regular meetings, without going through the exhaustive rule-making process. Finally, the DAR proposed allowing two nets of 125 feet each to be joined by two fishermen to make a 250-foot long net and allowing lay nets to be set half way across streams and stream mouths.

State law concerning the rule-making process prohibit agencies such as the Land Board from adopting substantive changes to proposed rules without further public hearings. According to the deputy attorney general assigned to the Land Board, the parts of the rules addressing Moloka`i, drafted in response to the July hearings, were substantive and thus required further public hearings before the board could act on them. As for the rest of the new proposals, the board decided to determine whether they were substantive after hearing public testimony.

Several people offered testimony opposing the five-year sunset provision, stating that lay gill nets will be just as destructive five years from now as they are today. Others, like the Office of Hawaiian Affairs, felt the sunset clause “puts the onus on the state to prove that its theory of marine resource improvement via lay net restriction is correct,” wrote OHA administrator Clyde Namu`o in a November 16 letter to Land Board chair Peter Young.

“Too often rule amendments are hasty band-aids that have no chance of being removed if the wound heals enough to warrant removal or if the wound continues to fester despite that particular band-aid,” he wrote.

Others objected to the increase in effective net length from 125 feet to 250 feet, as well as the new stream mouth proposal “as we know that estuaries are nursing grounds for awa, mullet, aholehole and o`opu to name a few and the use of gill nets in these places could easily deplete fish stocks,” wrote Charles Burrows, president of Ahahui Malama I ka Lokahi, a Hawaiian conservation organization.

In the end, the Land Board voted to withhold approval of these amendments and put them, as well as the Moloka`i amendments, out to public hearings.

“The public should have a chance to comment on them,” Johns said.

Native Rights

How the proposed rules affect native Hawaiian fishing rights and cultural practices was a major focus of discussion at the November meeting, and in the preceding months.

The proposed addition of pa`ipa`i netting (a traditional Hawaiian practice also known as ‘bang bang’ or ‘hukilau’ fishing) to the definition of lay netting raised concern among both native Hawaiians and environmentalists, who asked that the Land Board deal with pa`ipa`i separately from lay netting.

Presumably, pa`ipa`i fishing was added to ease enforcement, since the same type of net is used in both pa`ipa`i netting and traditional lay gill netting. Still, they are two distinctly different practices. During pa`ipa`i netting, fishermen set the gill net in an arc and drive the fish into it by splashing the water. The net is never left unattended.

DAR’s proposal to prohibit lay netting from one hour after sunset to one hour before sunrise concerned several Hawaiians and fishermen who target night fish.

“If you’re going to stop us laying nets at night, you’re going to create criminals,” said Dede Herron, who comes from a fishing family in Punalu`u.

Concerns similar to those of Herron had been raised in August at a meeting sponsored by the federal Western Pacific Fishery Management Council, in partnership with the Association of Hawaiian Civic Clubs, that convened some 200 native Hawaiian cultural practitioners and fishing and farming experts to discuss ocean-related issues, including the use of gill nets. The meeting, held in August at the Hawai`i Convention Center and titled Ho`ohanohano I Na Kupuna Puwalu, was funded by the council, with additional support from the Office of Hawaiian Affairs, the Hawai`i Tourism Authority, and Kamehameha Schools.

Testimony submitted to the Land Board by Civic Clubs association president Antoinette Lee states, “The overall consensus at the puwalu was to oppose the gill net ban because it could criminalize Native Hawaiians who will continue to use nets in the traditional manner as they have been taught for generations.”

An August 30 report from Leimana DaMate, chair of the AOHCC’s ocean resources committee, to the association and its board states that the puwalu was called to address “several critical issues now in play that adversely affect Native Hawaiian traditional cultural practices and immediate action is warranted.”

Those issues included the Department of Land and Natural Resources’ efforts to revise bottomfish closures (putting about 15 percent of bottomfishing grounds around the Main Hawaiian Islands off-limits to bottomfishing), the DLNR’s concept of ahupua`a management, the establishment of the Northwestern Hawaiian Islands Marine National Monument, and the DLNR’s efforts to regulate lay gill netting.

DaMate’s letter, however, erroneously stated that the DAR was proposing a statewide ban on gill nets and went on to say that, “This ban is detrimental to Native Hawaiians because it would effectively obliterate the native Hawaiian cultural practices of pa`ipa`i, moemoe, throw net, or any kind of net use. While all of the islands would be affected, the Island of Maui is targeted for a total ban for the entire island.” (No statewide ban was proposed, although the proposed rules on night setting would effectively ban moemoe netting statewide. At the request of Wai`anae fisherman and DLNR harbormaster William `Aila, however, the Land Board voted to give fishermen two hours before sunrise and after sunset to target night fish. Pa`ipa`i netting would still be allowed, subject to certain restrictions, except in the proposed closed areas. The DAR’s proposed rules would not ban throw netting or “any kind of net use.’)

The Office of Hawaiian Affairs, though supportive of most of the DAR’s proposed rules, also took exception to the proposed ban around Maui.

“We are concerned … that the smaller voices of Native Hawaiian subsistence communities on Maui were drowned out by the louder, more coordinated voices of Maui environmentalists who are not balancing the cultural resource needs with that of the natural resources. Just because the number of Hawaiian voices on Maui are small does not make their access and gathering rights small,” OHA administrator Namu`o said in his letter to Young.

Participants at the puwalu adopted several fishing-related resolutions that were presented to the Association of Hawaiian Civic Clubs at its October convention. The association passed a resolution opposing the state’s proposed rule changes regarding lay gill nets as it applied to native Hawaiians, with the exception of the rules relating to Kailua Bay. According to testimony by Ahahui’s president Burrows, who is also a member of the Kailua (O`ahu) Hawaiian Civic Club, the club wants to compare what occurs in Kailua Bay, where the use of gill nets would be prohibited, to other areas where lay gill netting would still be allowed.

“This resolution asked that the [DLNR] work collectively with the Association of Hawaiian Civic Clubs’ Ocean Resources Committee to create and implement a Native Hawaiian community-based marine resource management plan,” Lee wrote in her testimony. She asked that the Land Board defer acting on the proposed rules until the DLNR met with the Native Hawaiian community to determine the impact the rules would have on traditional and cultural practices.

`Aila, on the other hand, as well as paddler and Kai Makana (an ocean education non-profit) founder Donna Kahakui, supported the rule amendments.

“I would love to go back to the kapu system because you would find out who the responsible people were who were violating the kapu, and they wouldn’t be able to go to district court and have an attorney. The konohiki would get three guys, and they would take `em to the tree and they stick one rope around their neck and they would hold them to that tree until they died. And then they would leave them up for couple days to show how important fisheries management was and how important it was to be responsible,” `Aila told the Land Board.

“We cannot go back to that time now,” he continued. Addressing the invocation of fishing rights by several of those testifying, he said, “[W]e don’t have any rights; we have responsibilities. Ua mau ke ea o ka `aina i ka pono. Before the state changed the saying [the state motto] to, ‘the life of the land is perpetuated in righteousness,’ it was ‘the sovereignty of the land is perpetuated in righteousness.’ If the chief wasn’t pono and the people weren’t pono, then there was no sovereignty. Sovereignty was handed to somebody else.”

To address the native rights concerns, as well as recommendations that all communities – not just Moloka`i – be allowed to participate in rule-making, the Land Board approved a motion by member Johns to require the DLNR to return to the Land Board with a new set of proposed amendments to address Native Hawaiian gathering rights, including the establishment of community-based management plans.

Resource Effects

Whatever the effects the rules might have on native rights, Randall Kosaki, a National Oceanic and Atmospheric Administration research coordinator testifying as an individual, explained to the Land Board that there is a growing body of evidence on the destructiveness of lay gill nets. Kosaki, Bishop Museum ichthyologist John Randall, Bishop Museum zoologist Richard Pyle, and University of Hawai`i professor Charles Birkeland laid out that evidence in a report they co-authored last July, “A case against lay gill nets.”

In their report, they note that populations of native food fishes in the Main Hawaiian Islands – ulua, kumu, and moi, among others — are 25 percent of what they were 100 years ago.

“While pollution, development, and alien species are possibly all contributing to this loss, overfishing is the primary factor in the precipitous decline of our nearshore fisheries,” they wrote, adding that pole-and-line, handline, throw net, and spear fishing are more sustainable and responsible methods of fishing than “large-scale, indiscriminate, and damaging fishing methods, such as lay gill netting.”

Although their report cites several studies to back up its claims, it offers little data. When the rule amendments were first brought to the Land Board in February for permission to take them out to public hearings, gill net fisherman Tony Costa and Jim Anthony, executive director of the non-profit Hawai`i La`ieikawai Association, complained that the area closures and other proposals seemed to be based more on public opinion than on science. Anthony challenged the DAR to provide a study linking lay gill nets to the destruction of nearshore fishery resources, and Land Board member Johns asked that DAR address Anthony’s concerns before they brought the amendments back for final approval.

The DAR’s November report to the Land Board supporting the amendments, however, did not provide data on the effects of lay gill nets, but instead described the results of the public hearing process as well as a telephone survey of 1022 Hawai`i residents conducted by the Fair Catch campaign, which indicated that most of those surveyed, including most Hawaiians and fishermen, support the state’s proposals.

“You have not been well served,” Anthony said of DAR’s report. As for Kosaki’s testimony, he added, “The opinions of scientists is not science.”

While the science on lay gill netting may not be perfect, others say it doesn’t need to be, given the threat it poses to endangered species and the diminished state of reef fish populations.

Cha Smith, executive director of KAHEA: the Hawaiian-Environmental Alliance, made reference to the death of the monk seal off Waimanalo. The population of this critically endangered species is around 1200 and many resource managers and scientists feel that the loss of even one female is a blow to the species’ chances of recovery. Refusal to adopt rules that would give such endangered species additional protections from lay gill nets could violate the Endangered Species Act, she said. Given that monk seals are critically endangered, it’s questionable whether the state could get a federal incidental take permit to continue lay gill net fishing.

In a similar vein, Corinne Knutson of Fair Catch (a partnership with TNC, Malama Hawai`i, and SeaWeb) told the Land Board that four monk seals have been caught or killed by lay gill nets in the last two years.

Whether the proposed rules protect seals and turtles adequately is still being debated. Frank Farm, a chair of the task force set up by the state in the 1990s to advise on the most destructive forms of gill-netting, complained that the disparity between the Moloka`i rules and those for the rest of the state suggests that the state seems to think Moloka`i species are more hardy and can hold their breath longer than those around other islands. Linda Paul, executive director of the Hawai`i Audubon Society, generally supported the rules, but asked that inspections be increased to every 15 minutes, since air-breathing species could easily drown in half an hour.

Maui developer CGM, LLC, has been fined $15,000 because the company, erroneously assuming that the Conservation District boundary line was the same as the Forest Reserve boundary, built a water tank, and utility and drainage easements in the Conservation District without a Land Board permit. In fact, the Conservation District extended below the Forest Reserve line, encompassing the improvements, which are part of the Wailuku Country Estates development.

According to a November report by the DLNR’s Office of Conservation and Coastal Lands planner K. Tiger Mills, CGM had received a building permit for the work in February 2003, and by January 2004, had constructed a 100,000 gallon water tank, a roughly 20,000-square-foot road/utility easement, a 1,178-square-foot drainage easement, placed utility poles, removed trees, cleared land, and erected a six-foot-high chain link fence in the Conservation District, but without a Conservation District Use Permit from the Land Board.

In its after-the-fact Conservation District Use Application, CGM states that it had believed that its improvements were in the Agricultural District. Mills notes that CGM requested a determination of the state Land Use District boundaries in the area in August 2004, but “by then, the improvements were near completion.”

On November 17, Mills recommended that the Land Board fine CGM the maximum fine of $2,000 per violation and $1,000 in administrative costs. Maui Land Board member Jerry Edlao, saying that he felt the county and landowner also had a hand in the violations, suggested that they should share in the fine. OCCL administrator Sam Lemmo explained that the developer who built the project is responsible for permitting. “We’re trying to focus on the person who did it,” he said. In any case, he added, the developer was not contesting the fine.

Attorney Tim Lui-Kwan, representing CGM and landowner Wahi Ho`omalu Limited Partnership, explained that although the mistake was in part due to flawed county maps, the developer should have verified that those maps were correct.

The Land Board voted unanimously to approve OCCL’s recommendation.

The Nature Conservancy of Hawai`i’s Ka`u preserve has become the first Big Island preserve to be included in the state’s Natural Area Partnership Program, which provides matching funds to private landowners for conservation management of their properties. At its November meeting, the Land Board approved a request by its Division of Forestry and Wildlife to approve TNCH’s fiscal year 2007-2012 long- range management plan for the preserve, which is located on the southeast flank of Mauna Loa and was formerly owned by Mauna Kea Agribusiness Co., Inc.

The preserve includes some 3,511 acres of land in the Agricultural and Conservation districts and adjoins the state’s Ka`u Forest Reserve. The preserve contains a rare koa/`ohi`a montane mesic forest and provides habitat for a handful of endangered Hawaiian forest birds.

The total budget for fiscal years 2007 through 2012 is $1,037,520, with $691,680 from the state and $345,840 from TNCH.

— Teresa Dawson

Volume 17, Number 6 December 2006