Moloka`i Group Awaits Decision From BLNR on Subsistence Fishing Zone

posted in: February 1999 | 0

Off the windswept, isolated coast of northwestern Moloka`i, a three-year experiment in Native Hawaiian management of nearshore fisheries is at a crossroads. The legislative authorization for the experiment has run its course, but the group that undertook it remains hopeful that it will receive renewed authority — and funds — to continue the project indefinitely, and on a scale that dwarfs the scope of the original effort.

Perhaps because of the remoteness of the area, the Mo`omomi subsistence fishing reserve has attracted little statewide attention or controversy since it was proposed in 1994. But if the petition of the group Hui Malama O Mo`omomi to have a 30-square-mile area of coastal waters designated as a community-run subsistence fishing area is approved by the Board of Land and Natural Resources, the project would almost certainly set the stage for similar requests elsewhere around the islands.

When the matter does finally come before the Land Board for a vote, it will be the culmination of an effort that had its official launch precisely six years ago this month.

* * *
Defining ‘Subsistence’

In February 1993, then-Governor John Waihe`e appointed the Moloka`i Subsistence Task Force, charged with defining subsistence fishing and determining how important it is to Moloka`i families. The task force also was to recommend methods for maintaining and improving opportunities for subsistence fishing, hunting and gathering on the island.

The task force adopted the definition of subsistence that had been developed by yet another task force appointed by the governor in 1993, the Governor’s Task Force on Moloka`i Fishpond Restoration. Under that definition, subsistence consists of “the customary and traditional uses by Moloka`i residents of wild and cultivated renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tolls, transportation, culture, religion, and medicine, for barter, or sharing, for personal or family consumption, and for customary trade.”

Oral histories kept at the Bishop Museum led the task force to conclude that marine resources have sustained Hawaiians of northern Moloka`i since the 11th century. Ancient Hawaiians who wintered in the north valleys would summer at Mo`omomi, on the northwest coast, catching and curing seafood to see them through the winter, when the surf and weather would be too rough to allow fishing. Oral histories also tell of Hawaiians following the traditional trails from Nihoa to `Ilio Point for fishing. The locations of those favored spots are still used today for fish, seaweed, sea salt, and other marine resources, the task force said in its final report.

Selected for Survival In more recent times, subsistence activities continued to play an important role in the lives not only of the island’s Hawaiians, but also of non-Hawaiian residents, the task force found. A key year was 1924, when the first Hawaiian homesteads were established at Ho`olehua. For the next five years, the Department of Hawaiian Home Lands chose settlers from a pool of Maui families who volunteered for the task, screening the volunteers for those qualities that would best suit them for survival. Hence, according to DHHL records, the original settlers of Ho`olehua homesteads were chosen as those best able to survive by subsistence means.

Many of those families, or their descendants, continue to live on homestead land, which makes up about a fourth of Moloka`i’s total area — or 66 square miles. The 1990 census found that 49 percent of the island’s 6,717 residents were of Hawaiian ancestry. Only Ni`ihau has a higher percentage of Native Hawaiian residents.

Subsistence has remained an important aspect of island life, the task force found — especially when the pineapple plantations abandoned Moloka`i and major cattle ranches cut back their operations substantially.

In addition, the task force reported, subsistence fishing in particular has been sewn into community tradition. Experiences shared while fishing and gathering from the sea, in addition to the sharing of the food obtained in this manner, provide community members with a sense of continuity with the past and feelings of trust and support among themselves in the present.

Apart from these intangible benefits is the food itself. About half the community fishes, the task force found, and the per-household consumption of seafood at Ho`olehua homesteads is 25 pounds per week, or roughly 10 times the amount of seafood consumed in the average O`ahu household.

The task force began to meet in March 1993, just a month after its formation. Co-chars were Dona Hanaike, then-deputy director of the DLNR, and Kelson “Mac” Poepoe, a member of Hui Malama O Mo`omomi, which represents the Ho`olehua Homestead community. The task force’s work was financed by the Moloka`i Economic Development Office of the Department of Business, Economic Development and Tourism. Walter Ritte, head of that office, also participated in the task force, as did Bill Puleloa, aquatic biologist for the DLNR on Moloka`i, and Gregory Helm, Moloka`i district supervisor for the Deplartment of Hawaiian Home Lands.

The task force members conducted an islandwide random telephone survey and held a series of focus group meetings as well as one community meeting. The phone survey showed that almost half of the respondents’ family incomes were less than $20,000 per year. It also disclosed that those residents of Hawaiian ancestry obtained a higher percentage of their food — 38 percent — through subsistence means than did non-Hawaiian residents (28 percent).

In focus groups, residents of the Ho`olehua homesteads told the task force they wanted to control and manage the natural resources in their marine back yard. Kupuna complained that fish stocks had been depleted in recent decades and said someone needed to teach members of their community and other fishers in the Mo`omomi area about the old subsistence methods that they felt would allow the resources to recover and thrive.

Freezers vs. Iceboxes

“There is a growing feeling that if you don’t take everything when you see it, then someone will take it before you come back the next time,” the task force noted in its final report. “Thus, rather than taking only what is needed, more is harvested … and sometimes wasted. The widespread use of large freezers has also contributed to overharvesting. Before, the ocean was the ‘icebox’ and one only gathered enough for the `ohana and close neighbors and kupuna to eat. Now, subsistence practitioners gather more than what their family can immediately eat and the surplus is stored in freezers.”

However, subsistence fishers are not the sole users of the resource. Commercial fishers attending one of the task force’s focus groups expressed their concerns about having native Hawaiians possibly taking over the regulation of some of Moloka`i’s ocean resources. When asked what they thought of establishing a subsistence fishing area off the northwest coast, where non-residents would be required to be accompanied by a Hawaiian, the fishers were opposed. The 12 Moloka`i fishers in attendance said they did not want the waters off Hawaiian Home Lands reserved only for those who live on those lands and their guests.

“Hawaiian Home Lands is Hawaiian Home Lands, not Hawaiian Home Waters,” one fisherman told the task force. “No one owns the ocean; thus, the general public is just as entitled to fish in the waters off Hawaiian Home Lands as are the homesteaders.”

In its final report, the task force stressed the importance of subsistence not only for the Hawaiians’ economic and physical health, but also for the maintenance of Hawaiian cultural and spiritual well-being. To help maintain this element of the Moloka`i lifestyle, the task force called for a commitment from the community to manage the natural resources for future generations. “Traditional Hawaiian subsistence values and practices,” the report said, “need to be taught, understood, accepted, and practiced by everyone who engages in subsistence hunting, fishing, and gathering on Moloka`i no matter what their ethnic ancestry may be.”

* * *
The Pilot Project

At the same time the task force was conducting its work, the Department of Hawaiian Home Lands was preparing a bill to create a Native Hawaiian subsistence fishing area adjacent to Ho`olehua homesteads. The resulting draft bill was submitted to the governor’s office in November 1993 for consideration as part of the administration’s legislative package for the 1994 session.

The DHHL proposal called for establishing a five-year pilot project. Two management options were outlined for waters out to a depth of 40 fathoms following the shoreline between Nihoa Flats and `Ilio Point. The first called for permits to be issued by DHHL, with no commercial fishing allowed. The second called for the state to retain jurisdiction over the area, but to allow only subsistence fishing there.

The draft was circulated among the various executive branches of government, with the DLNR voicing the strongest objections. David Parsons, then-administrator of the DLNR’s Division of Boating and Ocean Recreation, expressed is concern over the proposal that the DLNR’s Division of Aquatic Resources relinquish control over any fishing area, since no other entity was prepared to take on that responsibility. In addition, he said in a memo dated November 16, 1993, he was just as opposed to a permit system.

Parsons noted that the bill did not include any plans for enforcement. “Even if this provision were included, it would appear that they would have to look to DOCARE for enforcement,” Parsons wrote, referring to the DLNR’s Division of Conservation and Resources Enforcement. “Neither DHHL or any agent of theirs have any statutory authority for conservation and resources enforcement.”

Henry Sakuda, then-administrator of DAR, noted his own concerns in a memo dated November 23, 1993. Most of all, he objected to the idea that his division would lose jurisdiction over any fishing area. “Any redirection of management authority over marine resources from the Department [DLNR] will cause confusion among fishermen,” Sakuda wrote.

Constitutional Concerns

Sakuda also voiced constitutional objections to the set-aside of a fishing area for use by Native Hawaiians only. “The offshore waters are public waters and cannot be designated only to Hawaiians to use and only Hawaiians on Moloka`i to use,” he wrote.

The constitutional support for exclusive Hawaiian use of the fishing area was based on Article XII, Section 7 of the state constitution: “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural, and religious purposes and possessed by ahupua`a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the state to regulate such rights.”

Sakuda elaborated on this constitutional question in a later memo, April 14, 1994, to Dona Hanaike. In that, he suggested that Article XII, Section 7 might be contradicted, if not superseded, by Article XI, Section 6: “All fisheries in sea waters of the State not included in any fish pond, artificial enclosure or state-licensed mariculture operation shall be free to the public, subject to vested rights and the right of the State to regulate the same; provided that mariculture operations shall be established under guidelines enacted by the legislature, which shall protect the public’s use and enjoyment of the reefs. The state may condemn such vested interests for public use.”

Act 271

After several revisions, the draft DHHL bill was, in the end, submitted to the 1994 Legislature as part of the administration’s package. The bill provided for the Mo`omomi community to manage some marine resources for subsistence. However, the bill was amended by the Legislature to make the DLNR responsible for managing any area that the department designated as a Native Hawaiian subsistence fishing area. The bill was passed and signed as Act 271.

In its final form, Act 271 amended Chapter 188 of the Hawai`i Revised Statutes by adding two sections. The first allows the DLNR to designate community-based subsistence fishing areas. This is accomplished by developing “fishery management strategies for such areas, through administrative rules adopted pursuant to Chapter 91, for the purpose of reaffirming and protecting fishing practices customarily and traditionally exercised for purposes of native Hawaiian subsistence, culture, and religion.” This section also lays out the procedures communities must follow to apply for the designation. Applicants are required, among other things, to specify the proposed location, justify the designation, describe impacts on other users, and state what uses would be allowed and how they would be monitored. Subsistence, in this act, is described as “the customary and traditional native Hawaiian uses of renewable ocean resources for direct personal or family consumption or sharing.”

If the DLNR grants such designation, the community must then demonstrate its ongoing ability to “meet community-based subsistence needs and judicious fishery conservation and management practices.”

The second section of Act 271 required the DLNR to create a “subsistence fishing demonstration project” between Nihoa Flats and `Ilio Point. However, in doing so, it could not curtail any existing commercial fishing activity as well as recreational fishing by non-Hawaiians. In addition, the Legislature required the community group running the project to submit a report before the start of the 1997 session. The pilot project was to start at the beginning of July 1995 and terminate exactly two years later.

While not as exclusionary as earlier proposals, the act still caused some consternation among some sectors of the Moloka`i population. The area designated for the pilot project in Act 271 borders the 13,500-acre Ho`olehua homesteads, where some 1,000 Hawaiians live, and the main access to the area crosses homestead lands. These circumstances had some non-Hawaiians worried that the Hawaiians could gate the road, limit vehicular access by non-Hawaiians, and effectively turn the area into a fishing zone for exclusive use by Hawaiian homesteaders.

Making Rules

Within days of the act’s taking effect, Bill Puleloa of the DAR described what he thought was the best area for the pilot project: Kawa`aloa and Mo`omomi bays from the high water mark to a straight line between Kaiehu and Na`aukahiki points. Puleloa found the area to be reasonably manageable, because from point to point the water ran a length of one mile with a maximum width from shore of half a mile. Dirt roads to both bays allowed four-wheel drive access for monitoring and enforcement — at least in fair weather and with a key to the gate that the Nature Conservancy has placed on its road to Kawa`aloa Bay. The bays also contain a wide range of shorelines (sand, limestone and lava rocks) and submerged lands (sand, rock and reef), providing a good representation of the marine life of northwestern Moloka`i. Puleloa also found that the bays were not regularly used by fishers whose interests might conflict with any proposed subsistence fishing rules.

To develop rules governing the pilot project, the DLNR held a series of four public meetings in the fall of 1994 — three at Kaunakakai, one in Honolulu. Among those testifying on a preliminary set of draft rules was George Peabody, editor of The Moloka`i Advertiser-News. Peabody took umbrage at the distinction made in Section 2 of Act 271 between subsistence fishing of Native Hawaiians and the recreational fishing of non-native Hawaiians. Non-natives also fish to eat, he said, not just to throw the fish back into the sea.

“My more general concerns,” Peabody went on to say in his testimony of October 24, 1994, “are that the draft administration rule proposed by DLNR to implement Act 271 exceeds the scope and fails to serve the purpose of the act … by limiting public access with an exclusive permit system, using native Hawaiian ethnicity as a qualifying factor to engage in subsistence fishing, and by making the project appear to be intended to be an exclusive area for native

By November, the DLNR had refined the draft rules and was preparing to hold a formal public hearing. The proposed final rules called for dividing the fishing area into two zones. In Zone 1, closest to the shore, fishing methods would be restricted to pole-and-line, throw net, scoop net, and hand-harvesting. In Zone 2, the same methods would be permitted, plus spearing during daylight hours and netting for akule.

All other existing aquatic resource rules and statutes would still apply, with the overlay of an additional permitting system, set up at the request of the Native Hawaiian community, Hui Malama O Mo`omomi, who wanted to monitor use of the resources by requiring all users to complete catch report forms. Permits would be issued to any commercial fisher who could demonstrate regular past use of the area and to anyone else who wanted to use the area, so long as they abided by the subsistence regulations. Permits would be valid for one year and revocable if permittees violated the subsistence rules.

The hearing on the final rules was held in Kaunakakai on March 23, 1995. (The hearing had been delayed to give Mike Wilson, the new DLNR administrator, time to review the project.) At the hearing, DLNR biologists made it clear that free permits would be given to everyone who applied, unless or until the fishery showed signs of depletion. Also, the permits would be issued by the DLNR, not the Native Hawaiian community partnering with the DLNR in the pilot project. Monthly catch reports would be required so that the take of marine resources could be monitored. Puleloa also told the audience that signs would be posted at both bays listing fishing restrictions and providing information on where permits could be obtained.

The final administrative rule went into effect June 30, 1995, ending with the project on July 1, 1997.

Patchy Catch Reports

As required by Act 271, a final report on the pilot project was presented to the Legislature in December 1996, even though the project itself continued to run another seven months. The report documented the Division of Aquatic Resources’ quarterly baseline surveys of marine life in the area, the monthly catch reports turned in by permittees, and the community’s goals for future, continued management of the area.

From July 1995 through October 1996, the report said, 39 permits were issued, covering a total of 155 fishers (one permit per family). Of those, 81 were resident native Hawaiians and 16 were non-resident Hawaiians; no information was provided on the remaining 58. There were no commercial permits issued in this period.

The Legislature was told that 232 catch report forms were turned in; most reported no fishing effort, while 36 reports (documenting catches of 100 fishers) showed some activity.

The catch reports indicated that, by weight, the number one resource taken from the project area was `opihi, with `o`io, or bonefish, coming in second. He`e, or octopus, and limu kohu were also targeted. August and September, with calm winds and longer daylight hours, seemed to be the months of greatest fishing effort. Kawa`aloa Bay was far more popular than Mo`omomi Bay, according to the catch reports. Weekdays saw just as heavy use as weekends — a fact that Hui Malama O Mo`omomi felt underscored the importance of the area for subsistence.

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Great Expectations

Even before the pilot project was under way, Hui Malama O Mo`omomi set its signts on managing a far greater area of ocean for Native Hawaiian subsistence fishing. In April 1995, Hui Malama submitted to the DLNR a proposal to designate for subsistence fishing an area extending out two nautical miles from the shore between Nihoa Flats and `Ilio Point — the same area proposed in the bill first proposed by the DHHL. The subsistence management area runs alongside 15 miles of coast, creating an ocean area of some 30 square miles.

This area borders one of the least accessible coastlines in Hawai`i due to its rough winds, waves, and few rutted dirt roads. From Nihoa Flats to Mo`omomi Bay, access follows a Hawaiian Home Lands dirt road. From Mo`omomi west to Kawa`aloa, the Nature Conservancy controls access with a pass key system. West of Kawa`aloa Bay, permission must be obtained to cross Moloka`i Ranch lands. At `Ilio Point, there’s an unimproved dirt road crossing state-owned land.

The proposed subsistence fishing area is also the location of virtually all the subsistence fishing practiced by Hawaiian homesteaders at Ho`olehua, with most of that fishing, in turn, done at the two bays — Mo`omomi and Kawa`aloa — where the pilot project was conducted.

Much of the coast is considered a natural fish hatchery. According to Walter Ritte, one of the driving forces behind the 1993 subsistence task force, the Ho`olehua community wanted to try to manage the area better than the DLNR had managed it in the past. “Mo`omomi is one of the cogs in the great plan of turning Moloka`i back into a place of food production,” Ritte told Environment Hawai`i.

The 1995 proposal by Hui Malama O Mo`omomi said that the community would try to maintain natural resources at sustainable levels, even to the point of going beyond present state and federal regulations. To do this, the group suggested co-managing the resources with the state, educating novice fishers in customary methods and values, and blending the local knowledge and experience of the area with the techniques of modern scientific data collection.

The proposal describes the project as attempting to “maintain and restore customary fishery practices that are consistent with subsistence uses and values. (Customary refers to behavioral patterns that emerged from traditional roots and have continuous and meaningful links with the past a they adapt to handling contemporary events.)”

* * *
Moving Forward

Even though it is still waiting for a decision on its proposal by the Land Board, Hui Malama O Mo`omomi has pursued through other channels its desire to manage the area for subsistence. From the DHHL, it has acquired a renewable lease, called a “stewardship license,” on more than 300 acres at the base of the main access road and fronting Mo`omomi Bay. Here, the group has built campsites and restored a community center that had burned to the ground several years ago. Members of the hui laid new water pipes to the area from DHHL lines at Ho`olehua, and has received technical assistance in managing the land from the DHHL and the Nature Conservancy.

Helm, the DHHL district supervisor who worked with the subsistence task force, said the license was granted in 1994 for five years. He says he expects it will be renewed when it expires later this year. The DHHL has not charged rent for the license, but in return for the lease, the hui is expected to maintain the beach pavilion and bathrooms, collect litter in the area, and protect the site’s native plants.

Already the beach pavilion has been vandalized, prompting some hui members to propose gating the access road. Helm said that while the homestead community has the right to do this, it was unlikely to do so, since that might engender conflict with the rest of the Moloka`i community. A gate has not crossed the road since the 1970s, when some homesteaders grazed cattle in the area, Helm said.

The hui plans to grade and realign the access road, while refilling the present gutted road and a parallel older road. Hui Malama President Wayde Lee said the group wants to plant native species to retain the exposed earth, as runoff from the roads has been affecting reefs in Mo`omomi Bay for years.

Beating Out MTV

According to Lee, the group’s main goal is to “maintain our lifestyles down there and manage through educating our youth until they have an understanding of how to take only what they need and manage for the future.”

To ensure that these methods and the reasoning behind them are passed on, Hui Malama O Mo`omomi applied for a federal grant through the Saltonstall-Kennedy program, managed by the National Marine Fisheries Service. The proposal, submitted in 1995, asked for money to “design and implement an educational program to (1) initiate novice fishermen (especially children) in subsistence fishing methods and values; and (2) facilitate the exchange of resource knowledge between subsistence fishermen and scientifically trained fishery managers.”

Not only do Lee and other experienced subsistence fishers have to “beat out MTV” to reach children, Lee explained, but it’s “hard for Hawaiians to prove what they know without a couple of initials after their names.” The Saltonstall-Kennedy grant, which provided Hui Malama with $74,755, was to provide a boost to the group in its efforts to share its traditional knowledge and gain credibility in the arena of resource management. The period of the grant ran from August 1, 1996, to January 31, 1998.

Raymond Clarke of NMFS helped negotiate the grant and became Hui Malama’s project officer. The Saltonstall-Kennedy program usually invests in innovative demonstration fishing projects, Clarke said; this was the program’s first educational project. By its nature, he said, the Hui Malama project was difficult to evaluate. A year after the last funds were spent, there is still no final grant report.

However, Hui Malama did submit bi-monthly progress reports to NMFS. According to Clarke, these listed the number of “novice fishermen” that the hui reached and reported how grant money was spent. The reports indicate that Hui Malama conducted 84 on-site presentations to 750 people during the grant period. In addition, it made classroom presentations at all four public schools on Moloka`i, extending its outreach to more than 1,500 students, teachers, and parents. Money was spent to purchase a used off-road vehicle, an underwater video camera, SCUBA gear, throw nets, coolers, and a Zodiac boat. Grant money was also used to pay two part-time assistant resource managers. All other teachers, assistants, and researchers were volunteers members of Hui Malama.

Clarke told Environment Hawai`i that working with volunteer groups such as the hui brought unanticipated administrative difficulties. He noted that most people only have so much time to offer to a volunteer project; consequently, tasks such as filling out forms and keeping accounts tend to be slighted. Should the group receive a second grant, Clarke suggests they hire someone to take care of the paperwork so the hui can focus on its main projects.

“It’s a rough road to hoe from a bureaucratic perspective, trying to calculate how many kids got to go into the water last month,” Clarke said.

The Saltonstall-Kennedy grant was not renewed. The group had applied for an extension, but did not change their original proposal sufficiently to make it competitive for funds in 1997, a year when far less money was available for grants than in 1996.

When the S-K grant was not renewed, Paul Bartram, technical advisor to Hui Malama and its main grant-writer, submitted an application for a grant to the Administration for Native American Affairs’ Pacific American Foundation. This proposal mentioned the same concerns about over-fishing in the Mo`omomi area and set out the same goals of promoting Hawaiian subsistence culture as were recited in the hui’s proposal to the DLNR for designation of the subsistence fishing area. However, this time, the proposal went on to advocate getting modern regulations in place to help enforce traditional methods and give credibility to traditional knowledge.

Bartram said the hui was recently awarded a grant of $125,000 a year for at least two years. Part of the funds are being used to help document codes of fishing conduct. Assisting the hui are members of Bishop Museum’s education department, who will make site visits early this year to Mo`omomi and will collect oral traditions of fishing techniques. The museum staff will develop an interpretive program after combining the oral histories with written histories in the museum’s library.

Sara Ili, a cultural resource specialist for Bishop Museum, told Environment Hawai`i that the museum’s final report would be used by the hui to support its claims that Native Hawaiians have a history of employing sound management practices. In addition, she said, the hui wants to show how present subsistence methods and rules mirror those of “olden times.”

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The Next Stage

Few would question the commitment of Hui Malama O Mo`omomi to the idea of managing marine resources in a manner consistent with traditional Hawaiian subsistence values and customs. But the jury is still out as to how effective Hui Malama O Mo`omomi has been in its varied efforts to gain credibility and authority in promoting its style of culturally based resource management. Whether those actions are enough to sway the Division of Aquatic Resources to recommend favorable action by the Land Board on the group’s proposal for a subsistence fishing area may come clear later this year.

“Community-based management is going to require considerably more trial and error,” says William Devick, acting administrator of the division. Still, Devick told Environment Hawai`i he was pleased with the amount and quality of information the hui collected through the monthly reports of the pilot project. “In terms of information, I think we came out ahead,” he said. “And it appears that the residents themselves take the project very seriously.”

Many of the non-residents concerns have been quieted in the years since the pilot project began. Most non-residents stopped complaining when it turned out they were not denied access to the area. Commercial fishers with valid licenses who had used the area were able to continue fishing there, while pelagic fishing vessels were not affected by the proposal at all.

Lee said the hui is hoping to instill the idea of sustainable fisheries management in fishers beyond the hui’s backyard. Just as important, he said, is having others outside the group learn to respect the skills of native Hawaiian master fishers, who can locate fish hatcheries and breeding zones by observing ocean currents and the movement of sands, and in whom resides the accumulated knowledge of centuries of Hawaiians’ relationship to the bounty of the seas.

“If you just take enough for your table, the ocean is going to take care of you,” Lee said.

— Heidi Kai Guth

Volume 9, Number 8 February 1999