New Bill to Protect & Manage Marine Trade in Hawaii Gains Support

Yellow Tang, Zebrasoma flavescens: at the center of pro- and anti-marinelife collection issues.

2012 looks to be pivotal year for Hawaiian aquarium collectors, activists who would ban them, legislators and marine biologists

By Ret Talbot

A grand, if not astonishing, total of eighteen aquarium-related measures have been introduced into Hawaii’s 2012 legislative session. There are seven new bills, four new resolutions and seven measures carried over from the 2011 legislative session.

Seven of the measures are measures seeking to shut down aquarium fisheries statewide, while the rest of the measures seek to further regulate the aquarium fishery and the aquarium trade in Hawaii.

As CORAL has reported in the past, Hawaii’s marine aquarium trade requires further science-based regulation to be able to demonstrate that it is a well-managed, sustainable, non-destructive fishery. In some cases, fishers and others involved in the trade have been proactive in proposing regulation.

In West Hawaii on the Big Island of Hawaii, where the vast majority of aquarium fishes are harvested, the West Hawaii Fisheries Council has engaged in multi-stakeholder efforts to come up with meaningful regulation. One of this year’s regulatory bills—House Bill 2129 (HB 2129)—originated in West Hawaii through a collaborative process involving fisheries managers, fishers, concerned citizens, and politicians. According to proponents of the Bill, HB 2129 would empower fisheries managers to better manage the fishery through legislation drafted with substantial community input.

Democratic Floor Leader Offers New Bill: 
Protect trade but regulate it
HB 2129, introduced by Representative Cindy Evans (D) of Big Island, right, is already receiving a lot of attention by both pro-trade and anti-trade individuals. Evans is Democratic Floor Leader and an experienced and respected legislator for the majority party in Hawaii.

The Bill authorizes the Department of Land and Natural Resources (DLNR) to impose temporary management measures (i.e., bag limits, closed seasons and moratoriums) within the West Hawaii Regional Fisheries Management Area without adhering to the usual administrative rule-making process. It also requires DLNR to establish a limited entry program for commercial aquarium fishers, and it mandates some key changes to the commercial aquarium catch reporting system.

While the Bill is viewed by fisheries managers as an important step toward a better managed, more sustainable marine aquarium fishery, commercial aquarium fishers are split in the their support of the Bill.

Extreme elements of the anti-trade side of the debate, many of whom want a statewide ban on aquarium fishing, do not support HB 2129, as they say it simply does not go far enough.

West Hawaii Fishery: “Already well regulated…”
Unlike most of this session’s aquarium-related bills, which assert the marine aquarium fishery is devastating Hawaii’s reefs, HB 2129 calls the West Hawaii fishery “one of the most well-regulated fisheries within the State” and “one of the best-understood marine ecosystems in the State.”

Acknowledging the data that exists and the fisheries managers already on the resource, HB 2129 seeks to give those fisheries managers the tools they say they need to better manage the fishery based on the data. Paramount amongst these tools is the ability to manage the aquarium fishery and the aquarium fish industry “in real time.”

The Red Tape Factor
At present, adaptive management—managing the fishery as a dynamic resource that sometimes requires timely action based on the best science—is not possible because of the constraints imposed by the administrative rulemaking process outlined in Chapter 91 of the Hawaii Revised Statutes.

“As it stands,” DLNR Division of Aquatic Resources (DAR) Aquatic Biologist Dr. William Walsh tells CORAL, “Chapter 91 rulemaking is wholly impractical for any adaptive management, since it literally takes years to implement any and all changes within an existing rule or to create a new rule.”

The current efforts to implement approved new rules in the West Hawaii Regional Fisheries Management Area, including the 40-species white list, is one example of how long it can take to implement management when constrained by Chapter 91.

Mixed Support from Fishers

Many aquarium fishers support HB 2129 because they think it is good for the fishery and will allow the people best suited to manage the fishery to actually manage it.

“I support this bill,” says West Hawaii-based aquarium fisher David Dart, “because it gives an option for a complete ban. I believe in real time fish management where the local biologists can adjust take according to fish count.”

Dart has 15 years experience in Alaskan food fisheries, where similar adaptive management has been essential to establishing those fisheries’ reputation as some of the best managed and most sustainable fisheries in the world. Like some others, Dart is disappointed the Bill only relates to the aquarium fishery, as this sort of real time management is needed across all fisheries. For some aquarium fishers, they are frustrated that HB 2129 would put additional restrictions on the aquarium fishery while ignoring major problems on Hawaii’s reefs.

Beyond frustration that HB 2129 unfairly targets the marine aquarium fishery, some fishers express concerns that HB 2129 could be “very harmful” to the trade. Specifically they worry the Bill does not explicitly define the criteria required for putting in place a temporary management measure such as a bag limit, seasonal closure or a moratorium on a particular species.

Additionally, a few fishers have expressed concerns that HB 2129 would eliminate the need for public hearings whenever DLNR desires to change an aquarium fishing rule.

Marine Scientists Favor Bill
Dr. Walsh, left, who helped draft the Bill with Rep. Evans’ office, acknowledges some of the concerns expressed by fishers, but he believes the potential benefits far outweigh the concerns, which he says, in some cases, are unwarranted. Walsh acknowledges HB 2129 would give the Board of Land and Natural Resources (BLNR)—the seven-member DLNR board, which convenes regularly to review and take action on department submittals—the ability to implement certain management changes without adhering to Chapter 91, but he feels there are plenty of provisions in place to stave off abuse.

“[Under HB 2129] the information,” says Walsh, “would have to be persuasive enough for the Board to feel that the management change requested—such as a moratorium on the collection of a certain species—was justified and necessary.”

Walsh also points out the Board meetings are public meetings where people can testify and present their own information.

“So,” he concludes, “there is a fairly high bar established to implement change via board decision—maybe even higher than by rulemaking where only DAR and the general public have a chance to weigh in on a proposed rule or rule change without in-depth BLNR scrutiny or deliberation.”

Fishing Free-for-All Would End
Individuals familiar with the rulemaking process in Hawaii also point out that precedent exists for circumventing Chapter 91 in very specific situations. BLNR, for example, has already done what is proposed in HB2129 in other situations such as the rules concerning the bottomfish fishery and the urchin fishery. 

In both cases, while the authorizing legislation clearly states adopting, amending and repealing pertinent rules is subject to Chapter 91, within each rule there is a provision allowing the Board to implement real-time change such as a temporary moratorium when the data shows it is necessary. In addition to DLNR, other departments, such as the Agriculture Department, already have rules providing for board-level change without Chapter 91 rulemaking.

In addition to enhancing DLNR’s ability to manage the fishery in real time, HB 2129 also would impose a limited entry program for commercial aquarium fishers in the West Hawaii Regional Fisheries Management Area effective January 2014, and it would require some key changes to commercial aquarium catch reports.

While most fishers agree the changes to the reporting system are not bad—aquarium fishers would now need to submit a report by the end of each daily fishing trip—the issue of limited entry remains extremely contentious. In a limited entry fishery, the number of fishers is restricted to balance the amount of fishing effort with the sustainable harvest limits of the fishery.

Building on Success Toward a Better-Managed and More Sustainable Fishery

HB 2129 begins by stating emphatically “the aquarium fishing industry in

West Hawaii is one of the most well-regulated fisheries within the State.” The Bill seeks to build on legislative successes such as the 1998 legislative action that first created the West Hawaii Regional Fisheries Management Area and required the ongoing data collection that has made this fishery such a well-studied fishery.

In acknowledging that “living natural resources…have a variety of factors that determine the health and vibrancy of any individual population,” and in further acknowledging “commercial exploitation may or may not always be involved in the natural fluctuations in a population,” HB 2129 seeks to give real-time decision making ability to those with a comprehensive understanding of the data.

As the Bill states, “The decision to determine cause and effect [between commercial exploitation and changes in the fish populations] should be made by scientists specializing in such cycles.”

“We are long overdue in allowing temporary closures as a means to manage fisheries such as aquarium fish,” Rep. Evans tells CORAL. “I drafted the aforementioned bill in response to the growing concerns in West Hawai’i of the reefs and aquatic life that inhabit them. There needs to be more support for managing our ocean resources. We need to recognize the work of the West Hawaii Fisheries Council. Now is the time to prove that ocean resource management is viable and sustainable.”

Activist Says She is Onboard with Bill
Tina Owens, right with “No Aquarium Collection” sign, of the Lost Fish Coalition and who played a role in drafting HB 2129 tells CORAL she is really proud of HB 2129. Owens is regarded by many as an environmentalist who wants to protect natural resources, but with a better grasp of marine science than other anti-trade activists.

“I really think this is a perfect example that folks can come together and all work for the good of the resource. That’s what it is all about. It’s not about one bunch against another; it’s not about ‘I win, you lose.’ If the resource loses, we all lose. There has been a great deal of cooperation between the aquarium fishers and the resource managers, and I do believe that we have all reached adulthood about this issue.”

The fact that Owens, who at one time was one of the most important voices advocating for a complete ban of Hawaii’s marine aquarium fishery, is now working with fishers, fisheries managers, politicians, and other stakeholders to shape a bill in the best interest of the resource is proof positive that the aquarium debate in Hawaii can be brought back to the level of rational discussion, scientific data and meaningful collaboration.