The Lu`uwai family of Makena, Maui, fished the nearshore waters of Ahihi-Kina`u for decades until 1973, when the area became the state’s first designated Natural Area Reserve, where boating and fishing are prohibited. Now, the Lu`uwais are breaking new ground with their application, filed in September 1997, for a traditional fishing permit that would allow them once more to take fish from the reserve.
The application has divided state natural resource managers, some of whom have expressed their fears that if this permit is approved, it would make the job of natural resource management statewide that much harder.
But, says Bill Evanson, Maui district manager for the NAR System, “if we avoid this issue, it will only return in another form. A lot of our talk and ideas have been using a Western yardstick, which hasn’t necessarily been in sync with the Hawaiian yardstick.” By approving the permit, Evanson says, “we could get more support for preservation while not just taking a biological focus.”
Bill Devick, acting administrator of the Department of Land and Natural Resources’ Division of Aquatic Resources, is solidly opposed to the idea. “The decision to establish the Ahihi-Kina`u Reserve has been made, and the foresight shown has been confirmed by the survival of a quality resource to the present, when near-shore resources in other parts of the Main Hawaiian Islans are known to be in serious decline,” Devick wrote in a March 25, 1998, letter to the NARS Commission. “The Reserve is providing a reference point showing how spectacular these resources could be elsewhere.”
Since 1973, the state Natural Area Reserves System has grown to include 19 reserves on the Big Island, Maui, Moloka`i, O`ahu, and Kaua`i. Ahihi-Kina`u is the only reserve to include a marine component. It includes half of Ahihi Bay, submerged lands around Cape Kina`u, a 1,300-acre lava flow, and coastal ponds.
There are two kinds of preserves in Hawai`i — Natural Area Reserves and Marine Life Conservation Districts — to protect endangered species, fragile or rare geological formations, and archaeological sites. The MLCDs, managed by the Division of Aquatic Resources, protect marine resources while still allowing human activities such as swimming, SCUBA, and limited fishign. The NARs, managed by the DLNR’s Division of Forestry and Wildlife, have strict controls on human interactions with the enviornment. No taking or disturbing of plants, animals, rocks, or shells is allowed, except by special permit.
The Ahihi-Kina`u reserve was proposed for designation in 1971 by Dr. John Maciolek, a founding member of the NARS Commission. In his proposal for protection of what he called the Ahihi Bay-Cape Kina`u Aquatic and Lava Flow Reserve, containing some 2,000 acres along three miles of coastline, Maciolek wrote, “Protection of the flora and fauna to the 60-foot depths is critical, but beyond this, light-dependent organisms fade out.”
As with the Lu`uwai application, Maciolek’s proposal encountered strong opposition, which focused mainly on restrictions on ocean uses. At public hearings on proposed regulations for the Ahihi-Kina`u reserve in March 1973, local residents expressed their objections to the elimination of fishing and boating in reserve waters. According to minutes of the hearings, Maui residents requested limited subsistence fishing in the area, saying that their angling could not significantly degrade the quality of resources in the reserve. The area had not been heavily fished in the past, they said; maintaining the status quo seemed reasonable to them.
In a formal response to such concerns, then-Governor John Burns wrote on May 29, 1973, “There is no way of allowing fixed-level use in the great population growth without being discriminatory. The unusually high quality of these inshore waters therefore requires protection by prohibition of all consumptive uses.”
Maciolek also responded to the objections of Robert Lu`uwai. In an undated letter that refers to comments made during the public hearings, Maciolek wrote: “I remain interested in the Hawaiian ethnic cause and feel that there should be a place for it in our general programming. In the particular case of Ahihi-Kina`u, I still do not see how special consideration can be accomplished without discrimination or extreme self-interest. However, if you and your relatives can get together and draw up a reasonable proposal (such as an ethnic ‘grandfather clause’), I promise to present it to the state’s attorney for consideration and argue it before the Commission.”
A Belated Response
For nearly a quarter of a century, there were no takers of Maciolek’s offer. Then on September 12, 1997, the Native Hawaiian Legal Corporation, representing Robert Lu`uwai, wrote the NARS Commission, requesting a special use fishing permit for Ahihi-Kina`u. Citing a long family history of fishing in the area, Lu`uwai claimed traditional fishing rights and sought to resume their exercise.
A NARS special use permit requires, among other things, “justification of why [the] project or collection must be done in NARS and not elsewhere.” In answer, the Lu`uwais included with their request two affidavits, one from Robert, the other from his brother, Rudy. The affidavits are oral genealogical histories of past fishing experiences along the Maui coast. The Lu`uwais claim that their family fished in the reserve area continuously from November 25, 1892, until the reserve was established.
Commissioners are to be guided in their decision on special-use requests by criteria for evaluating applications. One of those criteria address Native Hawaiian gathering rights. Such rights, when they cannot be conducted elsewhere and are legally protected, may be allowed when “consistent with the protective and educational purposes of the NARS” and are not undertaken “for commercial purposes.” Such permits for gathering, the criteria go on to note, should “be limited to native Hawaiians who are residents of the particular island where the subject Reserve is located.”
NARS Commissioner Robert Kinzie suggested that since the goals of the reserve and the Lu`uwais were not compatible, the marine portion of the NARS should be divided, with one area allowing fishing and the other closed. In return, the Lu`uwais would be asked to provide resource records and enforcement. They would help make sure the special use areas would be used only by permit holders and that the restricted areas would be avoided. They would also be asked to keep catch records to help managers make long-term decisions.
Kinzie wrote to fellow commissioner Y.B. Swimmer last February, “If the state is serious about supporting native Hawaiian rights and in seeking creative solutions to provision of access and gathering activities for native Hawaiians (and such questions will only be more numerous in the coming years), serious, thoughtful and flexible solutions should be sought now rather than waiting until situations develop where discussion, compromise, and cooperation are difficult.”
But others are not swayed. The most eloquent of these may be Devick, who, again in his March 25 letter, said that while it was important to incorporate Native Hawaiians into resource management programs, “the state should remember it holds a Public Trust responsibility to all its citizens, including all Native Hawaiians, that should not be sacrificed to salve a guilty conscience about past injustices to the original inhabitants.”
Countdown to Decision
The NARS Commission held a public meeting in Kihei last March. There, many people testifying complianed that the reserve is already heavily impacted by commercial recreation. On some days, about 20 kayaks can be seen in the reserve at the same time, along with snorkelers and divers, residents told the commission. They questioned why Native Hawaiians would be prevented from their customary fishing areas when the state seemed uninterested or unable to stop random poaching or recreational impacts.
The following evening, the commission appointed Maui Commissioner Donald Reeser to establish a working group to investigate the issue of native fishing rights in the reserve. Last October, the group gave the commission its report. If the commission approves the Lu`uwais’ request in any form, the next step is to change the NAR rules for Ahihi-Kina`u. This will require action by the Board of Land and Natural Resources.
The working group included the Lu`uwais, who refined their request during the group’s meetings. According to the final report, the Lu`uwais suggested allowing each family one annual, revocable permit, with up to four family members covered by each permit. Permits would be good four days a year and holders would be restricted to using Hawaiian sling spears, throw nets, he`e lures, hand- gathering (for `opihi and limu), or hand lines. Only certain areas of the reserve would be open to fishers. And in addition to the reserve restrictions, all other state fishing laws would have to be observed.
The working group’s report outlined five possible approaches, including approval of the Lu`uwais’ request as submitted; approval, but only for traditional fishing methods or shoreline fishing; denial; modification of the reserve’s boundaries to allow fishing in some areas that would be removed from the reserve; and converting some or all of the marine portion of the reserve into a Marine Life Conservation District, where some fishing could occur.
The NARS Commission discussed the report at its December 1998 meeting, but took no vote at that time.
“We have to exercise thoughtful, creative decision-making while ultimately protecting the resource,” says Betsy Gagne, executive secretary for the NARS Commission. “The options are out there and have been discussed. Now the commission members have to digest the report.”
Despite the report’s thoroughness, many questions remain, Gagne notes. “”Who has the exertise to rule on who has family ties,” she asks. “How do you monitor the permit?”
“It was a Hawaiian tradition to protect,” Gagne says. “As of now, this area is officially kapu.”
— Heidi Kai Guth
Volume 9, Number 8 February 1999