Denise Antolini, Associate Professor
Director, Environmental Law Program
William S. Richardson School of Law
University of Hawai`i at Mānoa
Domestic Ocean & Coastal Law
Summer School
July 14, 2005 Lecture #3
Today’s class
AML Int’l v Daley (2000) p. 478
-- Spiny dogfish
Essential Fish Habitat
Ocean Advocacy
Marine Protected Areas . . .
(handout is Audubon booklet)
Spiny dogfish distribution
Ocean Communities in Conflict:
The Heartbreaking Battle Over Marine
Protected Areas in Hawai`i
Hawaiian `olelo noeau
He pako`a kani `āina
“a coral reef grows into
an island”
Kane`ohe Bay, O`ahu
finger coral
Traditional Knowledge v. Modern Fishing Approaches
Motivations for use?
Implications for the resource?
Interest in conservation?
Coral Reefs: Rich Biodiversity
• Cover .17% of sea floor, but have 25% of all
marine species
• Reefs created by coral over thousands of years –
hard to create, easy to destroy
• Living coral reefs create habitat, nursery areas, sea
barriers, islands -> under-valued ecological
• Threats: disease, predation, coastal development,
alien species, over-harvesting, human destruction,
pollution, coral bleaching
Hawai`i’s Coral Reefs
• 25% of Hawai`i’s reef species are endemic
to the islands
• 15-18 species of coral (of 62) are endemic
• 24% of shore fish species are endemic
Indigenous Native Hawaiian Culture
400-500 A.D. Marquesas migration?
1200 A.D. Tahitian migration
Isolated but socially sophisticated Polynesian culture
Developed for 600-2200? years without Western contact
Hawaiian Culture
Native Hawaiian culture is deeply rooted in
nature, spiritual and genealogical
Hawaiian creation myth – born out of union of
earth mother (Papa) and sky father (Wakea), first
stillborn child (Haloa-naka) of Wakea and his
daughter when planted grew into taro kalo,
second son was Haloa, first human
Earth and sky are ancestors; kalo is a sibling -direct kinship with the natural world (not
“trusteeship” in Western sense)
Intimately tied to the ocean – arrived by canoe,
master navigators, fishers, and users of ocean
Hawaiian life was centered around ocean
gathering and fishing, sophisticated fishing
techniques (including hundreds of fishponds,
unique among Polynesians)
Hawaiian Culture
Totally dependent on islands’ natural resources and
a few introduced species for agriculture (sugar, banana, pigs, taro kalo)
Developed strong system of environmental protection based on:
• community property
• malama and aloha `āina (care for, love of the land)
• konohiki (traditional land steward under chiefs ali`i)
• kapu (prohibitions with harsh penalties)
• ahupua`a governance (moku): mauka (mountain) to makai (reef)
True Sustainable Development? = population of Native Hawaiians
possibly near 1 million pre-Contact, about the same as today (1.2m)
Polynesians also severely impacted the environment (deforestation,
extinction of bird species, introduction of some alien species)
1970s: Renaissance of Native Hawaiian Culture
Protests over Navy bombing of Island of Kaho`olawe
Successful early NEPA lawsuit to force archeological survey
Bombing eventually stopped
Island recently turned back to State for cultural and conservation
Strong renewed interest in taro cultivation, Hawaiian diet, Hawaiian
language, hula, traditional and customary practices
Pre-exist Western law, not
extinguished: two systems must
Enshrined in Hawai`i Constitution
Art. 12-7
"Traditional and customary
practices" means the "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," and as further
defined by Hawaii statutes, such as
sections 1-1, 7-1, and Hawaii case
Landmark PASH/Kohanaiki case
(1995) reinvigorated those rights –
all state agencies must respect and
New alliances, Native Hawaiian
Native Hawaiian Rights
Working Concept: A Uniquely Hawaiian MPA Governance Model
Based on Traditional Knowledge and Stewardship Principles
Argument: Traditional
Knowledge Model (Hawaiian
Stewardship) offers a stronger
foundation for effective longterm protection of marine
biodiversity in Hawai`i
v. “free for all” fishing (right to fish)
v. current small piecemeal reserves
v. western “no take” model for MPAs
If so, how can the Traditional
Knowledge Model be achieved
in current heated politicalregulatory context?
The Hawai`i Marine Protected Areas Battle
• Vocabulary
• Hawai`i’s Types of
• Legislative Fight
• Current
• Thoughts on a
Knowledge Model
Scope of this MPA Battle
• Main Hawaiian Islands only: Ni`ihau, Kaua`i,
O`ahu, Moloka`i, Lana`i, Maui, Kaho`olawe,
• Northwestern Hawaiian Islands now undergoing
federal transformation from Reserve/Refuge to
Sanctuary status (created by EO 13178, Dec.
2000; finalized 2001, EO 13178), 1200 naut. miles
• “State nearshore waters” = “all waters of the state
extending from the upper reaches of the wash of
the waves on shore seaward to a depth of one
hundred fathoms (600 ft)”
Midway Atoll
Vocabulary Notes: Hawai`i Definitions
Marine Managed Areas (MMAs): marine areas that
have special management rules, e.g., to allocate
fishery resources between user groups or to prevent
gear conflicts with boats in harbors
Marine Protected Areas (MPAs): subset of MMAs
DLNR draft definition: “any area of the marine
environment established by law or regulation to
protect or enhance part or all of the natural and
cultural resources therein”
Hawai`i MPAs are not “no take” but are “multiple use”
MMA System = “a system or series of MMAs that
share significant conservation and management
goals, criteria, or plans”
Hawai`i MMAs (Dots, not Lots)
Hawai`i “no take” MPAs are < .3% (<1/3 of 1%) of coastal waters
• 1955, Act 192: to conserve,
supplement, increase
Territory’s marine resources
• Evolved into Chapter 190:
Marine Life Conservation
District (MLCD) law
• Hawai`i now has 11 MLCDs
• Each MLCD has
administrative rules –
generally prohibit take, but
not always
1981, Act 85: Fisheries Management Areas (FMAs)
expanded from freshwater to marine fisheries
DLNR may establish, operate, manage, and maintain
marine fishing reserves, refuges, and public fishing
areas (HRS 188-53)
Users need permits to enter
24 FMAs on 6 islands (many focused on harbors,
piers, bays)
HRS § 188F-2 created West Hawaii FMA (1993)
– > 30% Kona coast closed to aquarium fishing
Fisheries Replenishment Areas (FRAs)
– Success story! +26% in targeted fish
– Yellow tangs increased 49% inside FRAs
– Spillover – outside population is steady
Waikiki-Diamond Head Shoreline FMA
– 2 year closures showed gains; but
– Now, 1 year and fishers “fish the line” and wipe
out gains from closures
• 1970, Chapter 195:
created Natural Area
Reserve System
• Only NARS with marine
component: Ahihi-Kinau
on Maui
• Problems with
commercial kayaking,
trampled ponds, cultural
Bottomfish Restricted Fishing Areas (BRFAs)
• Restricts fishing to preserve spawning populations of
bottomfish (7 specific species, 600-900 feet depth)
• 1995, fishers noticed big drop, formed group to push
for BRFAs
• Effective 1998: restricts fishing in 20% areas where
spawning onaga and ehu (red snapper) are caught
(HRS § 187A-5) (can’t use trap, trawl, BF long line,
or net; limited line fishing allowed)
• 19 BRFAs = 350 square naut. miles
Community Based
Subsistence Fishing Area
• 1994 (Act 271, HRS § 188-22.6): DLNR can create CBSFA to
reaffirm traditional and customary fishing rights for purposes of
Native Hawaiian subsistence, culture, and religion
• “Subsistence” means customary and traditional Native Hawaiian
uses of renewable ocean resources for direct personal or family
consumption or sharing
• Communities are to make proposals to DLNR
• Mo`omomi, Moloka`i – depletion of fish, lobster, and `opihi
• Hui established pilot in 1993, expired 1997, regulations repealed
Hawaii’s First MPA: Hanauma Bay MLCD
“Loved to Death”
Established 1967, 101 acres
State MLCD + City/County Honolulu Park
Shallow reef extends 100 yards; abundant fish
Easy access, snorkeling; up to 3.7m visitors/yr
“most heavily visited MPA in the world for its size”
Hanauma Bay
• In 1980s, visitors heavily damaged reefs
(fish feeding, trampling, pathogens)
• Rules: No take, no feeding (1999), no
motorized craft
• Since 1990, visitors restricted
– Tuesday day of rest
– New Educational Center (mandatory)
(opened 2002)
– Entrance Fees ($5 for non-residents)
– Redesigned limited access hours
• Economic Value estimated at $35m/yr
Fishers’ nightmare example of an MPA
Pūpūkea MLCD
• Established in 1983
Pūpūkea MLCD: Fishing Pressures
Permitted activities:
• To take and possess up to two pounds (combined total,
squeezed dry) of limu kohu and limu lipe‘epe‘e by hand harvest
only, provided the limu's holdfast is left in place.
Within Waimea Bay only:
• To take and possess any finfish with hook-and-line from the
shoreline, with not more than two poles per person and one line
per pole, with no more than two hooks per line.
2003: To take with legal nets and possess ‘opelu during August
and September, and akule during November and December.
(HAR 13-34)
2005 resolution: to allow hook and line pole fishing for akule
– Deferred last week (Sabrina Clark/Scott Atkinson campaign)
Nearshore fishing in Hawai`i is largely unregulated
– the wild west
Testimony: Gary Anderson, diver/photographer
On Hawai`i Marine Reserve Bill (March 2005):
• “In all my years diving, I have never seen near shore
fisheries and marine environments as depleted, overfished,
and neglected as the nearshore waters of the main Hawaiian
• “On dive after diver in the coastal waters of Hawaii, I have
seen a virtual underwater desert. There is an almost total
absence of mature reef fish.”
• “Setting aside 20% of nearshore areas as total “No Take”
preserves is a bar minimum necessary to have any hope of
rebuilding our near shore marine fisheries.”
• “watching our seas die before my very eyes is an
indescribable pain in my very soul . . . . Fishermen have no
idea of what is happening beneath the surface of our seas.”
U.S. Initiatives
U.N. International Year of the Ocean (1998)
National Ocean Conference (June 1998, Monterey, CA)
Clinton directed Cabinet to prepare a National Ocean Report:
“Ocean Policy and Action for the 21st Century”
Issued in Sept. 1999: 150 recommendations; 25 key areas
Goal: “Establish a strongly linked, scientifically based,
comprehensive network of protected areas representing diverse
U.S. marine ecosystems.”
Rationale for MPAs: “Marine protected areas are important
management tools with unique potential to help communities
protect and sustainably use their valuable marine and coastal
resources. They have been used effectively to conserve and
manage natural areas, reduce user conflicts and impacts from
user activities, provide educational opportunities, enhance
commercial and recreational opportunities, and provide
undisturbed areas for scientific comparison with nearby
degraded habitats.”
National Ocean Report (1999)
• “Despite these benefits and the fact that
oceans cover over 71% of the Earth's surface,
internationally, less than 1% of the sea is
designated as marine protected areas.
Domestically, about 1% of the ocean area
under U.S. jurisdiction is designated as
marine protected areas, and less than 1% of
these areas protect marine life from fishing
and other impacts.”
• Wilderness on land has been an effective
management tool, and we need to develop a
concept of wilderness protection in the
Coral Reef Task Force (1998)
Part of National Ocean Conference, Clinton issued Executive Order
13809 (June 1998): "to preserve and protect the biodiversity, health,
heritage, and social and economic value of U.S. coral reef ecosystems
and the marine environment"
EO established U.S. Coral Reef Task Force (12 agencies, 7
states/territories, 3 free states): coordinate EO work, build
partnerships and strategies, oversee Coral Reef Initiative (funding for
management, monitoring, education, research, restoration)
“Turning Point”: First meeting of USCRTF (October 1998, Florida)
Second Meeting (March 1999, Maui, Hawaii) – 5 major goals, including:
Launch a comprehensive effort to map and assess U.S. coral reefs
in the Pacific;
Establish a coordinated network of coral reef protected areas,
building on existing federal, state, territory and other sites and
activities . . .
One year later . . . MPA Exec Order
Clinton issued Executive Order 13158 on MPAs (May 26,
– To strengthen management, protection, and conservation
of existing MPAs
– To create new or expanded MPAs
– To develop scientifically based nationally comprehensive
system of MPAs representing diverse US marine
Established a Federal Advisory Committee on MPAs
Directed NOAA and DOI to establish Marine Protected
Areas Center (Silver Spring, Md)
– To develop a framework for a national system of MPAs
– To provide governments tools for effective design and
– Maintain web site
– Training and technical assistance institute (Charleston,
– Science Institute (Santa Cruz, CA), social science
Other Recent Developments
Oceans Act of 2000, established U.S. Commission on
Ocean Policy (established Aug. 2000)
July 2001: Pres. Bush appointed 16 members of the
National Research Council Report (2001): MPAs an
effective tool to maintain diversity and protect habitats
Pew Oceans Commission (report issued in 2002)
US Commission on Ocean Policy (Sept. 2004)
“Final Report: An Ocean Blueprint for the 21st Century”
Proposes “new, comprehensive national ocean policy”
Ch. 19, Achieving Sustainable Fisheries: “living marine
resources are held in public trust for the benefit of all
U.S. citizens”
Until recently, traditional U.S. approach to fisheries:
“race for fish: unlimited access for all”
Fishers developed better gear, new methods, caught more with
same effort, caught faster => no incentive to conserve
Recognizes MPAs a one type of management tool (Ch. 6, p. 6)
MPAs effective if among other management tools (Ch. 6, p. 7)
Recommendation 6-3: National Ocean Council is appropriate
entity to oversee development of a uniform process to design,
implement, and evaluation MPAs
US Commission on Ocean Policy (Sept. 2004)
Chapter 6: Coordinating Management in Federal
Stakeholders Issues:
• MPA controversial because of
impacts on stakeholders
• “While some stakeholders
recognize the benefits of creating
such areas, others vigorously
oppose the limitations on otherwise
legal ocean uses.” (Ch. 6, p. 8)
• In designing and implementing
MPAs, it is important “to engage all
regional and local stakeholders to
build support for the proposed
protected area, and to ensure
compliance with any restrictions
that it may impose.”
Hawai`i Legislative Response: Audubon Bill – 2002
• Primarily authored by Audubon Society
(Linda Paul, ED)
• To set aside 20% nearshore coastal waters
in networked MPAs
• Commission of scientists and agency staff
to determine areas based on NARS
• Strong backlash from vocal segments of
fishing community
• Splintered environmental community
• DLNR opposed the bill
• Bill died after hearing, but gained
momentum for issue
Hawai`i Legislative Response: HMRNA Working Group Bill – 2003
2002-03: Authored study for the State of Hawai`i on Marine
Protected Areas governance (Antolini, Moffie & Paulson)
Co-convened Legislative Working Group for purposes of drafting
legislation on MPA Network (with Rep. Morita, Rep. Schatz, DAR’s
Athline Clark)
Fall 2002: Co-drafted new legislation for 2003 Session to create new
system of designation and management, with emphasis on active
community participation (“co-management”) . . . 20% network goal .
. . By 2010 . . . killed by fishing community
“Big Mammas”
• Bill Walsh: “A key to
sustainability of our fish
populations is to have good
numbers of
big female fish. It's not only a
matter that big fish produce
more eggs but
also that they produce higher
quality ones as well.”
Taking a large 26" female
`omilu has an impact
comparable to removing 86
omilu half that size!!
• MPAs protect big fish, big fish
produce more eggs, more
eggs means more fish
Bill Walsh & Alan Friedlander
`omilu = bluefin trevally
Hawai`i Legislative Response: 2004 Bill
• HB 2056: “Community based Marine Co-Management”
• No time frame, no quotas
• “comanagement approach . . . meshes traditional
management methods with state management initiatives”
• "Community-based marine comanaged area council"
means “an organization of residents and resource users
who are committed to the creation of a community-based
marine comanaged area in their moku and who are drawn
from a diverse range of the interested user and
conservation groups, affected island communities,
scientific researchers, departmental marine ecologists,
and other governmental agencies.”
2004 Bill
HB2056, Section 2(b)
• “Community-based marine
comanagement areas:
• (1) Shall allow sustainable
traditional and customary
practices and essential
scientific monitoring and
• (2) Shall prohibit degrading
activities that adversely affect
coral reef species and habitats;
• (3) May allow ecologically
sustainable and nondegrading
activities compatible with the
purpose and intent of this
Hawai`i Legislative Response: 2005 Version – Deferred Again . . .
HB131 (HD 2):
• § 2(a): DLNR shall create and
manage a system of MMAs,
including marine reserves, by
Jan. 1, 2020 (HD 1 was 2010)
• Goal of a system of MMAs
encompassing a minimum of
20% of state nearshore waters
• Begin with pilot project on
Kauai, then island-by-island
• Existing marine areas can count
toward 20% if meet purposes of
the Act
Hawai`i Legislative Response: 2005 Version
HB131 (HD 2):
§ 4(a): DLNR shall establish a
public participatory process:
(1) includes . . . Diverse range of
the interested user and
conservation groups, affected
island communities, scientific
researchers, any other
interested parties, and
governmental agencies
[advisory only; unpaid];
(b) DLNR shall use the
information gathered through
the public process and other
relevant sources to develop
recommendations consistent
with this chapter
Peter Young . . .
William Aila
Hawai`i Legislative Response: 2005 Version
Hearing before the House Committee on
Finance (March 1, 2005)
• DLNR Chair Peter Young:
– Supports “intent of the bill” but
“inappropriate to adopt at this time”
– Board approved the concept of developing
a new framework for MMAs
– This should come first
– Concerned re cost of implementation
• Cost of staff participation in process
• Cost of long-term management,
monitoring, enforcement, and education
• Need new funding sources
Hawai`i Legislative Response: 2005 Version
Testimony: Office of Hawaiian
• Supported the bill, but wanted
higher penalties
• “Native Hawaiians have a long
history of natural resource
management skills, methods
and abilities, which can only
help in the struggle to save
Hawai`i’s over-exploited
• “Native Hawaiians trace their
ancestry to the very roots of the
Hawaiian islands and to the
womb of the oceans.”
Hawai`i Legislative Response: 2005 Version
Testimony: Sierra Club (5000
members in Hawai`i) supported
Kapu and protected areas have
long and successful history in
Hawai`i and elsewhere in the
DLNR’s fishery management
methods have not restored fish
populations to acceptable
Community-based, participatory
process is good approach
Hawai`i Legislative Response: 2005 Version
Testimony: The Nature Conservancy of Hawai`i
• Strongly supported the bill
with network of 20% state waters
as “no take” reserves
• MPAs successfully increase biodiversity and fisheries, inside
and outside of reserve, citing studies:
– A study of 80 Marine Reserves worldwide, population
densities were 91% higher, biomass was 192% higher,
average organism size and diversity were 20-30% higher
inside reserves than outside (Halpern 2002)
– In NWHI, 54% of the biomass of fish assemblages consist
of apex predators (large groupers, jacks, sharks, etc),
compared to only 3% of the biomass in the heavily fished
Main HI (Friedlander and DeMartini 2002)
TNCH Testimony . . .
– Densities of large, predatory reef fish increased 7fold in 11 years in the Apo Island Reserve in the
Philippines (Russ and Alcala 1999) and catch per
unit effort of the hook and line fishery increased
10 fold over 20 years (Maypa et al 2002).
– MPAs can “likely rebuild a sustainable and selfreplenishing fishery in the main HI”
– Need higher penalties
– “No take” reserves are the most effectively
enforced; the 20% should be “no take”
– The internationally accepted range for marine
protected areas is 30-50% of coastal waters
(e.g., Australia will designate 33% of Great Barrier
Reef in no take zones).
Hawai`i Legislative Response: 2005 Version
• Testimony:
• Fisher Reid Nagai: “strong oppose”; “very devastating to
our local commercial, recreational, and traditional
fisheries”; fishing family for generations; using `opuelu
koas in traditional manner to train fish for harvest by
feeding; bill would “severely affect my family and
especially our finances”
• Fisher Wayne Dang: opposes because of adverse
economic impact; fishing areas already limited due to
security restrictions and other laws; studies are not
accurate; enforce existing laws (e.g., bag limits) before
creating new ones.
Lessons . . .
West Hawaii
California MLPA
Ongoing DLNR efforts
New Framework
Scientific studies
• Federal pressure
• Political Leadership
See you at Hanauma Bay
• Meet at entrance at 1:50 pm – sharp!
Tomorrow’s Class
• Northwester Hawaiian Islands
• Guest Lecture: Cha Smith, KAHEA

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