Land Board Imposes Fine, Revokes Permit for Illegal Longlining in Territorial Waters
The punishment of commercial fisherman Konane Zager continued last month with the state Board of Land and Natural Resources voting on January 9 to fine him $10,051.90 and suspend his commercial fishing license for illegally longlining in state waters last May.
Following up on complaints of suspected illegal longline activity, officers with the Department of Land and Natural Resources’ Division of Conservation and Resources Enforcement found that Zager had deployed shortlines tied together — effectively making a longline — about seven miles off the Kona coast.
Zager’s line, which measured 3.69 nautical miles, had hooked three yellowfin tuna. DOCARE ordered that one of the fish be released alive. The other two were later sold.
Longlining is prohibited in state territorial waters, an area that extends 12 miles from shore, as well as federal waters out to about 50-75 miles. Any line longer than one nautical mile is considered a longline, under state law.
Zager told DOCARE officers that the GPS on his vessel was malfunctioning and caused him to over-extend his line, according to a report by the DLNR’s Division of Aquatic Resources.
He apparently said that he had “messed up.”
Officers confiscated his gear and his boat but later returned them after he pleaded no contest in June to a criminal charge of violating Hawaiʻi Revised Statutes 189-2.5(b). That law states, “It is unlawful to engage in longline fishing or to sell or offer for sale, any marine life taken with longline fishing gear within the boundaries of the State’s territorial sea.”
Third Circuit Judge Kimberly Tsuchiya ordered him to pay a $250 fine plus a $30 crime victim fee.
Last month, when the Land Board took up a recommendation from DAR to impose civil fines for the same incident and to revoke his commercial marine license, Zager objected.
DAR proposed a $1,000 fine for the illegal longlining, plus $1,000 per fish illegally caught, for a total of $4,000. The division also recommended recovering DAR’s and DOCARE’s administrative costs regarding the incident, which totaled $6,051.90.
In extensive written testimony, Zager argued that state waters extended only three miles from shore, and, therefore, the Land Board lacked the jurisdiction to penalize him.
Zager’s testimony, in which he referred to himself in the third person, also explained why he had tied his shortlines together, describing previous incidents where his gear had been stolen or vandalized. (His testimony began by stating that he was submitting it “on his own behalf, appearing pro se with the assistance of counsel.”)
“In the absence of his critical GPS tracking capability, and under conditions of extreme exhaustion [from bait fishing all night] and acute financial pressure, Mr. Zager took a protective measure he believed was reasonable at the time by temporarily tying his shoreline gear together so it could be more effectively monitored and safeguarded against loss, theft, or vandalism,” his written testimony stated.
“This action was not taken to evade enforcement, but to prevent further destruction or disappearance of legally owned gear in an environment where DLNR had repeatedly failed to provide protection despite years of documented reports,” he wrote.
He called DAR’s recommendation to charge him for the time DLNR staff spent on the enforcement action “double charging,” noting that the department’s personnel are “salaried public employees whose compensation is already funded by taxpayers — including Mr. Zager himself.”
Ultimately, DAR’s proposed penalties were “retaliatory, excessive, punitive, and fundamentally unjust,” he wrote.
At the Land Board’s meeting, DAR policy specialist Charlie Taylor noted that the state law prohibiting longlining requires that the commercial marine license of violators be revoked.
He added that the comments about the state being punitive or harsh ignored the fact that Zager’s actions also violated federal laws regarding longlining.
Longlining in federal waters outside of the prohibited zone is subject to a limited entry permit system, and permittees must obtain certifications regarding marine mammal protection, among other things.
“We don’t consider this a punitive action at all,” Taylor said.
With regard to Zager’s argument that the state lacked jurisdiction to impose the fines or revoke his license, Taylor said, “Those issues should be adjudicated in the court … and there was already an opportunity to adjudicate this issue.”
DAR’s report to the board also pointed out that state law allows enforcement of the longline prohibition in state marine waters, which are defined as “extending from the upper reaches of the wash of the waves on shore seaward to the limit of the State’s police power and management authority, including the United States territorial sea, notwithstanding any law to the contrary.” The United States territorial sea around Hawaiʻi extends 12 miles from shore.
“At the end of the day, a conviction was secured. Both the prosecutors and the judge found the venue was proper,” Taylor said. “The statute mandates anyone convicted … has their license revoked. There’s no discretion.”
“DAR’s not trying to get money out of this,” he continued. If, for any reason, the board wanted to change the recommendation, the division at least wanted the board to support the mandatory penalties of revoking the permit for one year and not allowing him to get a new one until the year is up, he said.
Zagar, testifying via Zoom, asked that the Land Board read his written testimony.
In arguing against the license revocation, he stressed that fishing is his sole source of income.
“If they take my license, there is no way to pay the fine. … You would be crippling a family and do no good,” he said.
The board met in executive session to discuss issues surrounding the seizure of Zager’s gear and boat and why they were returned.
Hawaiʻi island board member Riley Smith reported afterward that in executive session board members had received guidance from a deputy attorney general regarding the seizure of property. “I’m good on that,” he added.
Smith then asked whether it was possible for the board to sanction crew members as well. And the time of the incident, one crew was helping Zager.
Taylor said the question came up internally. “There was not a criminal citation issued against the crew member at that time. For our purposes, we were just sticking to what was criminally pursued,” he said, adding that he agreed with Smith’s sentiment that crew members also need to be made aware of the risks they face participating in illegal fishing.
Smith said he would like to prevent future occurrences of illegal fishing and send a consistent message. “Crew needs to think twice before participating in criminal actions,” he said.
The Land Board ultimately adopted a motion by Smith to approve DAR’s proposed recommendations, with the amendments that the department provide its enforcement files to the National Marine Fisheries Service’s Office of Law Enforcement, and that DOCARE pursue consequences to crew members who may be considering participating in illegal activities in state waters.
Public Hearings to Be Held on Hydrogen-Solar Project Lease
On November 14, the Land Board approved the withdrawal of approximately 100.7 acres from a 110-acre lot at Campbell Industrial Park, known as the ʻEwa feedlot, that had been transferred by executive order from the DLNR to the Department of Agriculture and Biosecurity in 2019.
The withdrawal would leave the DAB and its tenant, Hawaiʻi Land & Livestock (HL&L), on the property with about 9.4 acres.
On January 9, the Land Board amended its action to have the executive order transferring the land back to DLNR also remove the Land Board’s right to issue leases for renewable energy projects on the land left with DAB and HL&L.
When the entire 110 acres were under DAB jurisdiction, a 2022 inspection by DLNR Land Division staff found that a hauling company was illegally using several acres as a baseyard. This, together with HL&L’s resistance to a proposed a renewable energy project by Eurus Energy on most of the area, prompted the DLNR to get most of the land back.
The hauling company has since relocated.
A report to the Land Board by Luke Sarvis, a special assistant to DLNR director Dawn Chang, states, “The subject parcel is largely undeveloped. At present, there remain significant remnants of the historic feedlot operations as well as some perimeter fencing and dirt roads. Eurus proposes to construct and operate a renewable hydrogen generation facility. This project envisions a 20-megawatt photovoltaic system to generate electricity which would then power an electrolyzer to separate hydrogen from oxygen using recycled water supplied by the Honolulu Board of Water Supply.”
According to an overview of the project, named the Olai Green Hydrogen and Solar Project, “The hydrogen would be transported off site to purchasers either by truck or by pipeline. If the hydrogen is transported off site by truck, loading facilities would be constructed by the applicant near the hydrogen production area but the trucks and/or truck-trailers would be owned and operated by a third party. If the hydrogen is transported offsite via a pipeline, a third party would construct, own, and operate the pipeline and would be responsible for obtaining any necessary permits and/or approvals. Electricity generated by the PV system may also be delivered to the regional electrical grid to be used by others.”
In 2022, the Land Board granted Eurus a right-of-entry permit to conduct due diligence activities. Under state law, the Land Board may issue a direct lease for renewable energy projects and avoid the normal requirement that leases be awarded via a public auction.
Before the board can issue a direct lease, at least two public hearings must be held on the island where the project is located.
In addition to approving the amendment to its November action, the Land Board also authorized the DLNR to conduct two public hearings and to have chair Chang set the dates and appoint a hearings officer. Eurus would be required to reimburse the department of all costs incurred.
Wind Farm Wins Approvals of Lease, Conservation Plan
At its January 23 meeting, the Land Board granted a new 25-year, 200-acre lease to Kaheawa Wind Power I, which had been operating under a holdover permit after its previous 20-year lease expired last January.
To address the impact or possible impact of the company’s 20 wind turbine on protected species, such as the nene (Hawaiian goose) or the ʻōpeʻapeʻa (Hawaiian hoary bat), the Land Board also approved a habitat conservation plan and an incidental take license for the facility.
Last year, Earthjustice expressed concern over proposed measures in the draft HCP, as well as the fact that the wind farm had fallen short on its mitigation of nene take under its previous plan.
The state Endangered Species Recovery Committee later recommended approval of the plan, so long as certain amendments were made.
In written testimony on behalf of the Center for Biological Diversity and the Conservation Council of Hawaiʻi, Earthjustice attorney Harley Broyles noted that the final HCP includes as mitigation the requirement to curtail the turbines when wind speeds are 6.5 meters/second or lower, “from sunset to sunrise, which will help to minimize ‘ōpe‘ape‘a take.”
The final HCP also requires the project to fully shield all outdoor light fixtures, install motion sensors or otherwise ensure that outdoor lights are off when not in use, and limit the short wavelength content of outdoor lights to no more than 2 percent blue light content, measures that will help to minimize the take of ‘uaʻu (Hawaiian petrel) and ʻaʻo (Newell’s shearwater) caused by light distraction. “These are just a few notable changes made in the final HCP that are necessary for the Kaheawa I’s compliance with legal requirements and crucial for protecting Hawai‘i’s imperiled native species,” their testimony stated.
According to a DLNR press release, the 30-megawatt wind farm “can power about 17,000 Maui homes each year.”
Lease rent will be $300,000 annually, or 3.5 percent of annual gross revenue, whichever is higher, with a rental reopening after ten years.
— Teresa Dawson
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