Hawai'i Supreme Court Affirms Longline Fishing Ban in Hawai'i Waters

 

A press release from Maui attorney Lance Collins:

August 11, 2022

Paia, Maui -- The Hawai'i Supreme Court affirmed that longline fishing
is not permitted in Hawai'i state waters in a memorandum opinion issued
today.
      Native Hawaiian waterman and Pa'ia resident Malama Chun had filed an
appeal against the state BLNR regarding his petition challenging DLNR's
practice of issuing licenses to foreign nonimmigrant fishermen refused
landing privileges and confined to their ships while in port.
    Chun originally filed his petition in April, 2017. The BLNR first
denied the petition on the grounds that Chun lacked standing. Chun
appealed and the Maui Environmental Court reversed that decision in
December, 2017, sending it back to the BLNR to decide the merits of
Chun's petition.
    The BLNR then decided that foreign fishermen who have been denied entry
into the United States and are confined to their ships pending
deportation are “lawfully admitted to the United States” and therefore
permitted to obtain commercial marine licenses.
    State law restricts the issuance of commercial fishing licenses to
persons “lawfully admitted to the United States” Foreign fishermen
working in the longline fishing industry are refused permission to land
in the United States by Immigration and Customs Enforcement and are also
ordered deported. However, using a loophole, ICE authorizes the
fisherman's boat captain to hold the fisherman's passport and the
deportation order and allow the boat captain to determine when the
deportation is to occur. To enforce the deportation order, the piers at
which the fishing boats dock are heavily militarized and access is
restricted -- a practice criticized by the Human Rights Institute in its
2019 report of forced labor in Hawaii's longline fishing industry.
    The Supreme Court narrowly ruled that the legislature intended to limit
"state waters" under the licensing statute to 12 nautical miles from
shore and not out to the 200 mile exclusive economic zone. In so ruling,
the Court declined to address the BLNR's conclusion that a person
refused admission to the United States is nevertheless also lawfully
admitted to the United States.
    The holding is also limited by the legislature's passing of Act 43 last
year which radically changed commercial marine licenses processes.
Vessels, instead of individuals, are now issued commercial marine
licenses. In response to concerns over human rights abuses on board
longline vessels including Chun's petition, longline fishing vessels
must report the following information to the state annually in obtaining
vessel licenses: the identity, nationality, arrival date and departure
date of crew members of each vessel.
    Chun's attorney, Lance D. Collins, added: “While we are disappointed in
the narrow ruling of the Court, the court's decision and the new
reporting requirements of Act 43 will help to limit the more excessive
abuses of vulnerable foreign crewmembers in the longline industry.”
    Attorney Bianca Isaki also served as co-counsel for Malama Chun.