Scales of justice?
By CAROLYN LUCAS-ZENK
The Division of Conservation and Resource Enforcement could prove only four citations to aquarium collectors over the past 13 years, according to records provided by the state Department of Land and Natural Resources.
Under the Freedom of Information Act, Stephens Media requested in May from DLNR all records of enforcement, citations and penalties received by aquarium collectors in the West Hawaii Regional Fishery Management Area since the Fish Replenishment Areas took effect in 1999. Five months later, DOCARE provided just four redacted citations. And of those, three were issued on one day in one location.
Three citations occurred Jan. 27, 2011, in the Hookena FRA and involved alleged charges of collecting aquarium fish in a prohibited area. The remaining citation was in August 2010, issued because the violator didn’t display the required “AQ” while fish collecting in the West Hawaii Regional Fishery Management Area. Witnesses in all citations were from DLNR’s Division of Aquatic Resources.
The freedom of information request was for all records pertaining to enforcement and penalties. Attempts to query the agency about the paucity of records were unsuccessful; DLNR officials didn’t respond to interview requests for more than two weeks. However, in an Oct. 22 email, DLNR spokeswoman Deborah Ward wrote, “The DOCARE office says citations were four in three years’ time, not 13 (years).”
She failed to provide any response why the agency then did not fulfill the FOIA request for information over a 13-year span. It’s also unknown how many of the citations were prosecuted. According to Hawaii Revised Statutes, collecting aquarium fish in a prohibited area is a petty misdemeanor carrying a maximum fine of $500. Failure to meet boating requirements could net up to a $1,000 fine, but not less than $50.
Deputy Prosecuting Attorney Jeff Burleson said aquarium collector Steven Mahelona was convicted Jan. 18, 2012, of collecting in a prohibited area, received a fine and was put on boat fishing probation for six months. Mahelona and Eric Gorloff were among the three people cited in connection with the Jan. 27, 2011, incident. When Gorloff failed to show up for his court hearing in July 2011, a warrant for his arrest was issued but has not be served, Burleson added.
DLNR Chairman William Aila and the DOCARE administrator, whose identity is unknown, couldn’t be reached to get their analysis on enforcement, including whether they think enforcement is efficient and effective. Aila held a commercial aquarium permit until relinquished when he was appointed by Gov. Neil Abercrombie to head the state agency.
The number of commercial aquarium permits issued to Hawaii residents has fluctuated. Permits totaled 28 in 2000, 33 in 2001, 46 in 2002, 37 in 2003, 60 in 2004, 53 in 2005, 73 in 2006 and 2007, 66 in 2008, 65 in 2009, 71 in 2010, and 69 in 2011. The preliminary total for this fiscal year is 54 permits, according to DAR records.
Just six permits have been revoked in 12 years. Two were revoked in 2002 because of fishing in restricted conservation areas. Three permits in 2011 and one permit this year were revoked because of noncompliance with the monthly aquarium fish reporting requirement, DAR stated.
The Legislature created the West Hawaii Regional Fisheries Management Area largely in response to a longstanding and widespread conflict surrounding aquarium collecting. Currently, 35.2 percent of the coastline is set aside as FRAs, where aquarium collecting is prohibited. DLNR has received criticism during talks about reining in the aquarium trade and fish collecting bans in recent years. A lawsuit was filed last month in Oahu’s 1st Circuit Court, alleging DLNR should have conducted environmental review before issuing aquarium permits.
Some supporters say such actions are needed because the state has failed to enforce laws. Those in the aquarium industry say there’s no enforcement problem and they’re unjustly targeted by a small group of outsiders who continue to mislead the public.
“The Big Island Association of Aquarium Fisherman has no knowledge of any reports of violations not being investigated by DOCARE officers, and yet they claim there is an enforcement problem,” said Bob Hajek, the association’s president. “Aquarium fishing has been, and continues to be, the most regulated fishery in the state and we are boarded and inspected by DOCARE regularly. The reason there are so few regulation violations on record is not because DOCARE is not doing its job; it’s because we are continually found in compliance with the laws and regulations of our fishery.”
Hajek said the enforcement concerns are “just another in a long line of attempts of the anti-aquarium forces to create a situation where one does not exist.” He added, “This has never been a resource issue; it has always been a user conflict.”
Jim Lovell, a Kona fisherman for more than 32 years, was recently boarded by a DOCARE officer who inspected his coolers and found him to be in complete compliance of all rules and regulations.
“It is bad enough our opponents are trying to make fishermen in Hawaii look bad with false accusations, but to say our enforcement officers are not doing their jobs is insulting,” Lovell said.
Kailua-Kona resident David Dart has been fish collecting here for the past 23 years. He said DOCARE is doing a good job, and most aquarium fishers are following the rules. DOCARE officers have checked him for permits at least a handful of times over the years, adding, “they know exactly who is doing the right thing.”
Dart said aquarium collectors care deeply about reef health and their livelihood and are prudent about self-regulation and “will turn each other in if fishing in closed water is observed.”
“The lack of tickets written by enforcement officers issued to the aquarium industry over the years shows compliance to the rules by the fisherman, not incompetence of officers, as they are portrayed by ecologist groups from Maui and elsewhere,” he said.
As the industry matures, Dart said changes are needed, which is why he’s supporting the state’s proposed West Hawaii rules package. The proposal, to be discussed during a Dec. 5 public hearing at the Kealakehe High School cafeteria, includes: a list of 40 fish species permitted for aquarium take; establishment of a West Hawaii aquarium permit and requiring notification to the DAR Kona office if possessing aquarium collecting gear or aquarium fish after or before sunrise.
“We need the West Hawaii rules package passed not just for more aquarium regulations, but for a foundation to manage all forms of fishing. Rules governing the reef should be based on sound science,” Dart said.
For Dart, the proposed aquarium regulations are “easily enforceable with a minimal amount of manpower hours.” He said the four main boat ramps in West Hawaii provide a choke point for the fish to pass through, and it would be easy for DOCARE to check species of fish, bag limits and size limits there. He also thinks aquarium fish shops could be easily inspected.
Still, Dart said DOCARE officers need the power to be successful in enforcing all fishing activities. He advocated supporting legislation that allows inspection of potential fish-holding containers, such as coolers, without probable cause, as well as suggested DOCARE’s focus be used for more traditional fisheries enforcement.
Email Carolyn Lucas-Zenk at email@example.com.
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