Concerns aired in high court over foreign commercial fishing workers

The Hawaii Supreme Court heard oral arguments Friday in a case addressing whether the state Department of Land and Natural Resources can grant state commercial fishing licenses to foreign nationals working on boats flying the U.S. flag but who cannot legally enter the country.

Issues in the complex case involve legislative intent, social equities and economic realities, the balance of powers and how far the state’s jurisdiction reaches offshore.

The case on appeal, Malama Chun vs. Board of Land and Natural Resources, Department of Land and Natural Resources, State of Hawai‘i, and Hawaii Longline Association, arose out of Chun’s June 2017 petition seeking to stop DLNR from issuing licenses to foreign, nonimmigrant fishermen.

The BLNR rejected the petition without holding a public hearing and the state Circuit Court of the First Circuit affirmed BLNR’s decision.

Chun, a Native Hawaiian resident of Maui who fishes as a cultural practice, filed his petition after learning from a 2016 Associated Press report that hundreds of foreign fishermen were confined to their vessels when anchored at Hawaii’s docks, some in unhealthy, unsafe conditions, and often spend years continually at sea under threats of deportation.

“They do not have access to legal process,” said Lance Collins, Chun’s attorney.

“Mr. Chun says this interferes with his fishing and cultural practice,” Collins said, evoking the traditional Hawaiian principle that the weak should be protected.

Collins said DLNR’s licensing violated HRS 189-2(a), which 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,” and HRS 189-5, which 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.”

Noting the U.S. exclusive economic zone extends 200 miles offshore, while Hawaii state waters extend 12 miles out from the islands, Chief Justice Mark Recktenwald asked Collins whether “the possibility they may violate (the law by taking fish in state waters) doesn’t mean you can’t issue a license,” much as states issue drivers’ licenses “despite the risk of speeding.”

Collins replied the violations weren’t just a possibility, noting a finding that, while “‘most’ of the fish are taken from the high seas, some fishing is occurring within limits of state authority.”

He added the state Constitution extends state authority out to 200 miles.

Geoffrey Davis, attorney for the Hawaii Longline Association, disagreed.

But if the state’s authority did extend 200 miles, Recktenwald asked him, what would be the point of licensing people who haven’t been lawfully admitted to the U.S. to fish in state waters?

They would still need a license, Davis replied, if they took fish from beyond the 200-mile EEZ that were still landed and sold in Hawaii, which, he argued, was intended by the statutory language, “taking marine life for commercial purposes.”

Justice Michael Wilson asked Davis if the individual would need a license if they could “do the fishing and commercialize it somewhere else,” for instance processing their catch in a factory ship in the ocean.

They wouldn’t need a Hawaii license in that case, Davis said, but, he added, “that the fish are landed in Hawaii (and create) economic value to the fishing industry and the state — it’s the biggest single crop in the state, (bringing in) $189 million.”

“But if they had lawfully admitted fishermen on the ship, would there be any impediment to getting a license?” Wilson asked.

Davis replied that American citizens didn’t want to work on the boats, which relied on “experienced, knowledgeable” foreign workers, and in Hawaii “we’re looking forward to economic recovery after COVID, (and) this is one of the pieces of it.”

Representing the state, Deputy Attorney General William Wynhoff said federal law can help with understanding what state law means with regard to ”lawfully admitted.”

When a vessel comes into the state, he said, the commanding officer is required to give Immigration and Naturalization Services a list of aliens employed on the boat. “They’re lawfully here; the INS knows they’re here, in U.S. waters.”

Recktenwald disagreed, stating that under federal immigration law, “lawfully admitted is synonymous with permanent residence,” but Wynhoff countered there were different categories in which people could be in the country for a “limited purpose.”

Wilson asked Wynhoff if the state’s position was that traditional and customary rights were irrelevant to the issue of licensing. Wilson said what, for instance, if state jurisdiction does not extend into the EEZ, “and unlimited fishing destroys fish stocks and the environment upon which cultural practices depend?”

Wynhoff replied that the case was not about cultural rights, which had been raised by Chun only to give him standing as a plaintiff, and “there’s no evidence of a relationship between fishing for species hundreds of miles offshore and his fishing for species within a few hundred yards offshore.”

Collins replied that Chun, who does go farther out and fishes for the same migratory tuna and swordfish as the longline boats, was “very concerned in the continuing decline of his ability to engage in his traditional and customary practice of fishing” because the state was not fulfilling its duty “to protect marine resources” as well as vulnerable people.

“Working conditions on these ships are nearly slavelike, and these individuals are unable to help the state enforce natural resource laws and Clean Water Act violations,” he said.

In addition to Recktenwald and Wilson, Justices Sabrina McKenna and Paula Nakayama and Circuit Court Judge John Tonaki, in place of recused Justice Richard Pollack, were present.