Niihau waters should be state responsibility

Many facets of Niihau life are unique, not the least of which is the dominance of the Hawaiian language and the residents who have sustained much of the old Hawaiian culture.

But the fact remains that Niihau is part of the state of Hawaii, so the job of managing its critical marine resources properly belongs to state government, which appears ready to handle the task as it does in other zones facing environmental stress.

This means that Senate Bill 180, Senate Draft 2, is, by the most generous analysis, premature.

A harsher review of the bill, which would create a private fishery extending two miles into what are public waters, would conclude that it’s an undemocratic way of solving a resource-management problem and would set an untenable precedent.

Either way, the bill should be killed for the session.

The bill would vest a single individual a resident of the privately owned island with what’s called konohiki rights.

In old Hawaii, the konohiki was the steward of an ahupuaa land division and managed its resources.

Many of the older provisions in state law derive from Hawaii kingdom law, including some that deal with natural resources. Hawaii residents owe the public ownership of shoreline beaches to this history.

Another artifact of that heritage, as SB 180 points out, is that Hawaii Revised Statutes includes a section, 187A-23, that describes konohiki rights. It’s more than a little murky what this actually means, though.

The law states that "these vested fishing rights for the private fishery must be established by proceedings," and lays out a claims process.

Malia Akutagawa, an assistant law professor at the University of Hawaii, said the same argument that secured traditional Hawaiian gathering rights through state courts could maintain that the old rights of ahupuaa tenants under the konohiki were never extinguished. But, she acknowledged, this assertion has never been tested in court.

Viewed from outside the context of kingdom law, passing SB 180 would be unnecessary and problematic. William Aila, director of the state Department of Land and Natural Resources, testified before the Senate Committee on Water and Land that konohiki rights constitute "a complex issue that needs to have further discussions in the community."

He added that the department is developing a management plan for the waters around Niihau and "will be implementing this plan through our rule-making authority."

The department should be given the chance to finish its work. DLNR has been able to impose bag limits, restricted zones and other management strategies elsewhere in the state: This should be tried for the benefit of Niihau as well.

As for the problematic aspect of the bill: Imagine what would happen if this precedent was taken and applied to another island. We can’t forget that Lanai, for example, is owned almost entirely by one person. Should Larry Ellison control Lanai marine resources, too?

There can be no doubt that the state has a trust responsibility to maintain the fishery that provides subsistence for the unique community of Niihau. But it should do so without impinging on the rights of other residents of this state.