Oral arguments Friday September 18 on DLNR issuance of commercial fishing licenses to foreign fishermen

by Larry Geller

The Supreme Court will finally hear oral arguments on SCAP-19-0000501 on Friday, September 18, 2020, 8:45 a.m., fully four years after the initial AP reports of Sept 8, 2016.

In these times of COVID, these foreign workers are displacing scarce jobs that would otherwise go to Native Hawaiians and other local fishermen. They also generally have language issues that would suggest they do not understand rules for conserving Hawaii's fish resources. Because they are not allowed to land in Hawaii, when the fishing boats are idle, they are nevertheless confined to the ship or the immediate area of the pier.

From the Supreme Court calendar scheduling the oral arguments:

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Brief Description:

This case involves the interaction between the Department of Land and Natural Resources’ (DLNR) issuance of commercial marine licenses and HRS §§ 189-2 and 189-5, statutes which limit the taking of marine life.

HRS § 189-2(a) states, “No person shall take marine life for commercial purposes whether the marine life is caught or taken within or outside of the State, without first obtaining a commercial marine license[.]” HRS § 189-5 states, “It is unlawful for any person who has not been lawfully admitted to the United States to engage in taking marine life for commercial purposes in the waters of the State.”

Malama Chun (Chun) challenged the issuance of commercial marine licenses to foreign non-immigrant crewmembers on longline fishing boats that dock in Honolulu to sell their catch. Chun sought a declaratory order that the DLNR lacks the authority to issue commercial marine licenses to persons not lawfully admitted to the United States. The Board of Land and Natural Resources (BLNR) denied the petition; Chun appealed the decision to the Circuit Court of the First Circuit, which affirmed the BLNR. The Supreme Court accepted Chun’s application for transfer of this case. Chun contends that the circuit court erred on three grounds when it upheld the BLNR’s decision denying Chun’s Petition for Declaratory Order:

(1) Affirming BLNR’s conclusion that alien longline fishing crewmembers were “lawfully admitted” to the United States;

(2) Affirming BLNR’s conclusion that commercial fishing licenses may be issued to persons not lawfully admitted to the United States; and

(3) Concluding that Chun must present a factual record of violations of HRS § 189-2(a) by foreign non-immigrant crewmembers in order to obtain relief.

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Google will turn up many articles on this issue, but here are some. Note that Bruce Anderson was head of DLNR and described the issue as a labor issue, outside of his jurisdiction:

Hawaii Agency Rejects Rule to Protect Foreign Fishermen

Hawaiian seafood caught by foreign crews confined on boats

Hawaii bill would ban licenses for some foreign fishermen

State agency opposes rule change for foreign fishermen

Oral arguments are streamed by the Supreme Court from their YouTube channel:

https://www.youtube.com/hawaiicourts