Feds Threaten Hawaiian Sovereignty

SOURCE: Ken Taylor (taylork021@hawaii.rr.com)
SUBHEAD: The Whale Sanctuary regulation changes means Hawaiian waters resources are under Federal control.  

By Lyn McNutt on 31 January 2012 in Island Breath -

Image above: Detail of map of the waters of the Hawaiian Islands Humpback Whale National Monument Sanctuary.
From (http://sanctuaries.noaa.gov/library/imast_gis.html).

There have been changes proposed to the Humpback Whale Sanctuary that will immensely increase the power of the Federal government in Hawaiian waters, taking away the State's jurisdiction to its own waters. This takes the rights of Hawaiian residents (1.4 M) and places them at the whim of the "American people" in general, some 300-400 Million of them. This is very troubling due to the way that the National Marine Sanctuary Act and the Endangered Species Act function.

People are being lead to believe that Hawaiian peoples' rights will somehow be preserved after these changes, but my experience of how the Federal system of regulatory laws works leads me to believe that expanding any authority of the Federal government within the sanctuary can lead to very undesirable consequences (see review of compact agreement below). Currently Hawaiian Islands Humpback Whale National Monument Sanctuary (HIHWNMS) Act says:
"Sanctuary resource means any humpback whale, or the humpback whale’s habitat within the Sanctuary."
Keep in mind that whales do NOT come here to feed, so they do not compete with native Hawaiian species for resources. This is the proposed change:
"Sanctuary resource means any living or non-living resource of the National Marine Sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the Sanctuary, including, but not limited to, the substratum of the area of the Sanctuary, other submerged features and the surrounding seabed, carbonate rock, corals and other bottom formations, coralline algae and other marine plants and algae, marine invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, seabirds, sea turtles and other marine reptiles, marine mammals and historical resources."
Please NOTE that there is NO MENTION of subsistence use. In other words. everything will belong to the Feds.
The key wording in the HIHWNMS Act is this:
'The purpose of the regulations in this subpart is to implement the designation of the Hawaiian Islands Humpback Whale National Marine Sanctuary by regulating activities affecting the resources of the Sanctuary"
Therefore under the current definition of "Sanctuary resources", the sanctuary's mandate is limited to "humpback whales or the humpback whale's habitat". Under the ecosystem based management method "resources" means...


...becomes subject to protection and regulation. Please, consider the longterm consequences of this change for the people of Hawaii. With the Federal laws as currently enforced, and the agreements in place, there really is no protection (see below) 

Notes on the Compact Agreement with the State of Hawaii and NOAA 

Please note in the agreement that NOAA, through the Sanctuary Act "has been vested with the jurisdiction and authority to protect and manage the resources of this sanctuary in trust for the People of the United States and is specifically charged with implementation of the policy of the United States". (bold lettering is mine). There is your catch because the policies of the United States may not be consistent with the laws or regulations or needs of the state of Hawaii. This allows NOAA to bring in a whole slew of federal rules and policies INCLUDING the new National Ocean Policy (remember, we have no exemptions or Strategic Plan under that policy---what goes for the Mainland goes for us, too). Section IV (D) States clearly that NOAA and the State will collaborate, but the management of the Sanctuary falls under the laws in the National Marine Sanctuary Act. In Section IV (D) (2) it says that...
"To the extent permitted by law, there shall be mutual agreement regarding enforcement policies and priorities."
The main title of that section indicates that the "law" is the "National Marine Sanctuary Act, the Sanctuary Management Plan, and MOAs, and protocols developed thereunder". ALL of these will trump the State, so beware. The agreement keeps saying that nothing will happen without the signature of the Governor, but when it comes to the Governor proposing changes (section IV (H) it says "...NOAA shall initiate the Federal rule promulgation process required to make revisions requested by the Governor..." Here is where the Endangered Species Act and other federal laws will come in. NOAA consistently "outvoted" the state in the Northwest Hawaiian Islands, and overrode the State's veto of several items related to several different species, the monk seal in particular (V. Alter, Stanford Law School, April 2006, available on request).

 It also does NOT say that fishing will not be regulated (it never mentions subsistence fishing, by the way). It says fishing is currently not included, unless DLNR implements new regulations. So, all they have to do is ask the State... and the State has a dismal record here.

  Also, the National Marine Sanctuary Act says that the Feds have the authority to "take over" if they feel that the State is not enacting laws and regulations that are effective enough. The Endangered Species Act permits the Federal Government to regulate the State's treatment of endangered species.  

So it goes back to the Federal Law trumping State law if there is a conflict in the goals of the Management Plan, and then National Marine Fisheries Service (NMFS) is the agency that will decide what needs to be done, all within the authority of the Sanctuary Act and the Endangered Species Act, under the new National Ocean Policy.

Section IV M gives NMFS oversight of all the resources for the Federal Government in the Sanctuary through "implementation of the management plan" and gives them the authority to "evaluate the effectivenedss of existing management efforts in achieving those abjectives and policies including whether additional measures (e.g. regulations or critical habitat) to protect the humpback whale or its habitat are needed)"

 OK, now substitute the word "monk seal" or "coral" for humpback whale in that sentence, and you will see that NMFS will have the authority to enact anything that they feel necessary under the ESA through the management plan and into the Sanctuary as part of the National Marine Sanctuary Act and this agreement. It also says that NOAA will "fully involve and consult with the State". It does not say that they are obligated to listen to the State. Section IV (A) says that the State doesn't relinquish its right to "title or authority to manage and regulate submerged lands, resources, or activities..." but the next two sections go on to say that the Governor agrees to put state owned lands into the Sanctuary system, and that the Sanctuary Management Plan (and therefore the laws of the Sanctuary Act) will apply throughout the ... "Sanctuary, including the portion of the Sanctuary within the seaward boundary of the State."

MOAs and Compact Agreements with references to external documents are really tricky. I used to run into the same thing with all the Space Station agreements, etc. This Agreement looks OK on the surface, since whales don't compete for resources here. Whales DO NOT EAT while they are here. Keeping this agreement in place and giving the Sanctuary the authority to add additional species that might compete for resources, such as the monk seal, would be a real mistake. They will have to create a new agreement. Stand firm on this.

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