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HomeMy WebLinkAboutCOM 0333.079 2010-2012BRENDA J. FORD Council Member District 7 - Central Kona Phone: (808) 323 -4277 Fax: (808) 329- 4786 E -Mail: bford @co.hawaii.hi.us HAWAII COUNTY COUNCIL County of Hawaii West Hawaii Civic Center 74 -5044 Ane Keohokalole Hwy. Kailua -Kona, Hawaii 96740 DATE: October 4, 2011 TO: Dominic Yagong, Chairperson, and Members of the Hawai`i County Council FROM: Brenda J. Ford, Council Member w SUBJECT: Proposed Amendments to Resolution No. 130 -11: Requesting The Legislature Of The State Of Hawai`i To Amend Chapter 188, Hawai`i Revised Statutes By Adding A New Section To Be Appropriately Designated Prohibiting The Sale Of Aquatic Life For Aquarium Purposes And Amend Existing Section 188F -4 Regarding The West Hawai`i Regional Fishery Management Area Plan, and replacing Exhibits A, B with the corrected version of same attached hereto. For your consideration, please find attached proposed amendments to Resolution No. 130 -11. The proposed amendments, illustrated via Ramseyer format with respect to the contents of Resolution No. 130 -11 and bolded for emphasis, read as follows: 1) Add a new fourth WHEREAS clause to read: "WHEREAS, Article XII, Section 7 of the Hawaii State Constitution affirms protection of native Hawaiian rights customarily and traditionally exercised for subsistence, cultural and religious purposes; and" 2) Add a new fifth WHEREAS clause to read: "WHEREAS, a balanced marine ecosystem is important to the survival and sustainability of fishing grounds (ko`a), the ability to continue to fish and gather using customary and traditional methods, and is a critically important element in perpetuating native Hawaiian customary and traditional practices; and" Serving the Interests of the People of Our Island Hawai`i County Is An Equal Opportunity Provider And Employer Comm: No. 333.79 Ref. To: Prese. J Co ultu I Ref. Date UG E 5 201 October 3, 2011 Page 2 3) The former fourth and now sixth WHEREAS clause is amended to read: "WHEREAS, in [ ,] a cultural- and environmentally - driven tourism economy, the continued protection of our reefs and its inhabitants enhances the overall cultural experience, [bringing] which brings millions of tourism dollars into the State coffers; and" 4) The former sixth and now eighth WHEREAS clause is amended to read: "WHEREAS, the Council of the County of Hawai`i urges the State Legislature to protect our reefs and its aquatic life, and promote increasing reef fish population that will continue to enhance the overall experience of Hawaii, its culture and natural resources and attract and sustain the tourist industry of our State by prohibiting the sale of aquatic life to the aquarium trade in the State of Hawai`i; now, therefore," 5) Amend Exhibit A as follows: A) Section 1 of Exhibit A is amended to read as follows: "SECTION 1. Chapter 188, Hawai`i Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: " §188- Selling of aquatic life for aquarium purposes prohibited; penalties; fines. (a) For the purposes of this section, the following definitions apply: "Aquarium fish collection" means the collection of any marine or freshwater aquatic life. "Aquarium fish permit" means a permit issued by the board of land and natural resources for the taking of aquatic life and for the use of fine October 3, 2011 Page 3 mesh nets and traps to take salt water fish, freshwater non -game fish, or other aquatic life for aquarium purposes. "Aquarium purposes" means to hold salt water fish, freshwater non -game fish, or other aquatic life alive in a state of captivity as pets, for scientific study, for public exhibition or display[;] for public education, or for sale for these purposes. "Aquatic life" means any type or species of mammal, fish, amphibian, reptile, mollusk, crustacean, arthropod, invertebrate, coral, or other animal that inhabits the freshwater or marine environment and includes any part, product, egg, or offspring thereof; or freshwater or marine plants, including seeds, roots, products, and other parts thereof. "Department" means the department of land and natural resources of the State of Hawai`i. "Sell" means to transfer, prescribe, give, or deliver to another, to leave, barter, or exchange with another, or to offer or agree to do the same to another for consideration. "Take" or "taken" means definitely to or attempting to fish, catch, capture, confine, or harvest aquatic life. (b) It shall be unlawful for any person at any time to knowingly or intentionally sell or offer to sell, for aquarium purposes, aquatic life taken from any of the waters within the jurisdiction of the State. (c) This section shall not apply to a person exercising a customary and traditional right for subsistence, cultural, or religious purposes, subject to the right of the State to regulate that right, including native Hawaiian gathering rights and traditional cultural practices as authorized by law or as permitted by the State pursuant to article XI, section 7 of the Hawai`i State Constitution. (d) This section shall not apply to the taking of aquatic life for human consumption or for sale for human consumption, including the use of bait. October 3, 2011 Page 4 (e) This section shall not prohibit special activity permits allowed under section 187A -6; provided that the permit issued is for the bona fide purpose of scientific research or for display in [] a public aquarium operated for benefit of public education [;]_ (f) Any person violating this section or any rule adopted pursuant to this section shall be guilty of a misdemeanor, and: For a first offense, shall be fined not more than $1,000 or thirty days imprisonment, or both; For a second offense within five years of a previous violation, shall be fined not more than $2,000 or sixty days imprisonment, or both; and For a third or subsequent violation within five years of a previous violation, shall be fined not more than $3,000 or ninety days imprisonment, or both. (g) In addition to any other penalty imposed under this section, a person violating this section shall be subject to: (1) An administrative fine of not more than $1,000 for each aquatic life specimen sold; (2) Seizure and forfeiture of any taken aquatic life specimens, commercial marine license, vessel, and equipment; and (3) Assessment of administrative fees and costs, and attorney's fees and costs. (h) The division of aquatic resources of the department shall submit an annual report on the effectiveness and enforcement of this section to the legislature no later than twenty days prior to the convening of each regular session. ' October 3, 2011 Page 5 B) Section 2 of Exhibit A is amended to read as follows: "SECTION 2. Section 188 -31 Hawai`i Revised Statutes, is amended to read as follows: 1188 -31 Permits to take aquatic life for aquarium purposes. (a) Except as prohibited by law, the department, upon receipt of a written application, may issue an aquarium fish permit, not longer than one year in duration, to take aquatic life and to use fine meshed traps, or fine meshed nets other than throw nets, for the taking of marine or freshwater nongame fish and other aquatic life for aquarium purposes. [ [(e-)] in The permits shall be issued only to persons who can satisfy the department that they possess facilities to and can maintain fish and other aquatic life alive and in reasonable health and who can satisfy the department that the methods of capture, husbandry, and transport are humane and will not result in substantial injury to or death of the taken aquatic life. ga No person shall take aquatic life for aquarium purposes or use fine meshed traps or fine meshed nets other than throw nets to take marine or freshwater non -game fish and other aquatic life for aquarium purposes without an aquarium fish permit. [(4)-](3) No person shall puncture the swim bladder or clip the fins of marine or freshwater fish taken for aquarium purposes. Any aquatic life collected for aquarium purposes shall be handled in a humane manner. [(c)] (b) It shall be illegal to sell or offer for sale any fish and other aquatic life taken under an aquarium fish permit[.-] unless those fish and other aquatic life are sold alive for a public aquarium for public education. October 3, 2011 Page 6 [(1)]isl The department may adopt rules pursuant to chapter 91 for the purposes of this section. ' C) Section 3 of Exhibit A is amended to read as follows: "SECTION 3. Section 188F -4, Hawai`i Revised Statutes, is amended to read as follows: " §188F -4 West Hawaii regional fishery management area plan. The department shall develop a West Hawai`i regional fishery management area plan that identifies and designates appropriate areas of the management area as follows: [(1) Identifies the West Hawai`i regional fishery management area as the southernmost point of the west coast of the Island 4 ] [(](Designates a minimum of one hundred per cent of coastal waters in the West Hawaii regional fishery management area as fish replenishment areas in which aquarium fish collection is prohibited; [(3)]glEstablishes a day -use mooring buoy system along the coastline of the West Hawaii regional fishery management area and designates some high -use areas where no anchoring is allowed; Establishes a portion of the fish replenishment areas as fish reserves where no fishing of reef - dwelling fish is allowed; (4) management-arm] Designates areas where the use of gill nets as set nets shall be prohibited; Identifies the West Hawaii regional fishery management area as the area from the northernmost point of the west coast to the southernmost point of the west coast of the Island of Hawaii, and out from the high water line to 1500 meters depth; October 3, 2011 Page 7 [(5)]LProhibits the collection of reef - dwelling aquatic life except for human consumption or for sale for human consumption, including the use of bait[.-]• and [(6)]OThis section shall not apply to a person exercising a customary and traditional right for subsistence, cultural, or religious purposes, subject to the right of the State to regulate that right, including native Hawaiian gathering rights and traditional cultural practices as authorized by law or as permitted by the State pursuant to article XI, section 7 of the Hawai`i State Constitution. ' D) Section 4 of Exhibit A is amended to read as follows: "SECTION 4. Section 189 -11, Hawai`i Revised Statutes, is amended to read as follows: " §189 -11 Receipts in duplicate. Every commercial marine dealer shall issue receipts to the person from whom marine life is obtained and shall provide the following information in the receipt: (1) The date of the issuance; (2) The name of the person to whom the receipt is issued; (3) The following information with respect to each of the varieties of marine life as the department shall require including: (A) The weight in pounds of each of the varieties received; and (B) The numbers of marine life when they average a pound or more; and (C) The price per pound paid; and (4) The signature of the dealer who issues the receipt. Any dealer taking the dealer's own marine life or handling any marine life taken by commercial marine licensees working for or with the dealer, shall make out the same receipt, giving market price for the marine life as prevails on the date of receipt. A duplicate copy of this receipt shall be kept on file at the premise where the marine life was sold by the dealer issuing the same for a period of twelve months from the date of issuance, and the duplicate October 3, 2011 Page 8 copy shall be available for inspection upon the demand of any conservation officer authorized to enforce the laws of the State. ' 6) Replace Exhibit B (Justification Sheet) with the corrected Exhibit B attached hereto with this proposed amendment. A draft copy of Resolution No. 130 -11, Draft 2 is attached incorporating these amendments. BJF /dkr Att. A RESOLUTION REQUESTING THE LEGISLATURE OF THE STATE OF HAWAII TO AMEND CHAPTER 188, HAWAII REVISED STATUTES BY ADDING A NEW SECTION TO BE APPROPRIATELY DESIGNATED PROHIBITING THE SALE OF AQUATIC LIFE FOR AQUARIUM PURPOSES AND AMEND EXISTING SECTION 188F -4 REGARDING THE WEST HAWAII REGIONAL FISHERY MANAGEMENT AREA PLAN AND SECTION 189 -11 REGARDING RECEIPTS IN DUPLICATE. WHEREAS, the aquatic life of the reefs within the State of Hawai`i are being devastated by the collection of reef fish and other aquatic life, especially native fish species; and WHEREAS, the County of Maui has already passed legislation to prevent further degradation of their reefs and aquatic life, and WHEREAS, despite the provisions set forth in Section 188F -4, Hawai`i Revised Statutes, West Hawai`i Regional Fishery Management Area Plan, scientific research proves that collection of reef fish diminishes the number of fish reaching reproductive age, thereby reducing the number of adult fish contributing to the genetic pool, and that while some of our reef fish are increasing, specific species have not increased in numbers; and WHEREAS, Article XII, Section 7 of the Hawai`i State Constitution affirms protection of native Hawaiian rights customarily and traditionally exercised for subsistence, cultural and religious purposes; and WHEREAS, a balanced marine ecosystem is important to the survival and sustainability of fishing grounds (ko`a), the ability to continue to fish and gather using customary and traditional methods, and is a critically important element in perpetuating native Hawaiian customary and traditional practices; and WHEREAS, in a cultural- and environmentally - driven tourism economy, the continued protection of our reefs and its inhabitants enhances the overall cultural experience, which brings millions of tourism dollars into the State coffers; and WHEREAS, the aquatic life of the reef protects the reef from being overgrown by algae and also provides food for larger pelagic fish which in turn sustain humans with food supplies; and WHEREAS, the Council of the County of Hawai`i urges the State Legislature to protect our reefs and its aquatic life, and promote increasing reef fish population that will continue to enhance the overall experience of Hawai`i, its culture and natural resources and attract and sustain the tourist industry of our State by prohibiting the sale of aquatic life to the aquarium trade in the State of Hawai`i; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that in order to protect the reefs and aquatic life within the State of Hawai`i, the Hawai`i State Legislature is urged to enact the bill attached hereto as Exhibit A with the Justification Sheet attached as Exhibit B. BE IT FINALLY RESOLVED that copies of this Resolution be transmitted to the Honorable Neil Abercrombie, Governor of the State of Hawai`i, the President of the State Senate, the Speaker of the State House of Representatives, the House Finance Committee Chairperson, and the respective Mayors of the counties of Hawai`i, Kaua`i, Maui, and the City and County of Honolulu. EXHIBIT A .B. NO. A BILL FOR AN ACT RELATING TO PROHIBITION ON SALE OF AQUATIC LIFE FOR AQUARIUM PURPOSES BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: 1 SECTION 1. Chapter 188, Hawai`i Revised Statutes, is amended by adding a 2 new section to be appropriately designated and to read as follows: 3 4 -§1 8 8- Selling of aquatic life for aquarium purposes prohibited; penalties; 5 fines. 6 (a) For the purposes of this section, the following definitions apply: 7 "Aquarium fish collection" means the collection of any marine or 8 freshwater aquatic life. 9 "Aquarium fish permit" means a permit issued by the board of land and 10 natural resources for the taking of aquatic life and for the use of fine 11 mesh nets and traps to take salt water fish, freshwater non -game fish, or 12 other aquatic life for aquarium purposes. 13 "Aquarium purposes" means to hold salt water fish, freshwater non -game 14 fish, or other aquatic life alive in a state of captivity as pets, for scientific 15 study, for public exhibition or display for public education, or for sale for 16 these purposes. 17 "Aquatic life" means any type or species of mammal, fish, amphibian, 18 reptile, mollusk, crustacean, arthropod, invertebrate, coral, or other 19 animal that inhabits the freshwater or marine environment and includes PROHIBITION ON SALE OF AQUATIC LIFE Page 2 2 3 4 .B. NO. any part, product, egg, or offspring thereof; or freshwater or marine plants, including seeds, roots, products, and other parts thereof. "Department" means the department of land and natural resources of the State of Hawai`i. 5 "Sell" means to transfer, prescribe, give, or deliver to another, to leave, 6 barter, or exchange with another, or to offer or agree to do the same to 7 another for consideration. 8 9 "Take" or "taken" means definitely to or attempting to fish, catch, capture, confine, or harvest aquatic life. 10 (b) It shall be unlawful for any person at any time to knowingly or 11 intentionally sell or offer to sell, for aquarium purposes, aquatic life taken from 12 any of the waters within the jurisdiction of the State. 13 (c) This section shall not apply to a person exercising a customary and 14 traditional right for subsistence, cultural, or religious purposes, subject to the is right of the State to regulate that right, including native Hawaiian gathering 16 rights and traditional cultural practices as authorized by law or as permitted by 17 the State pursuant to article XI, section 7 of the Hawai`i State Constitution. 18 (d) This section shall not apply to the taking of aquatic life for human 19 consumption or for sale for human consumption, including the use of bait. 20 (e) This section shall not prohibit special activity permits allowed under 21 section 187A -6; provided that the permit issued is for the bona fide purpose of 22 scientific research or for display in a public aquarium operated for benefit of 23 public education. 24 (f) Any person violating this section or any rule adopted pursuant to this 25 section shall be guilty of a misdemeanor, and: 26 PROHIBITION ON SALE OF AQUATIC LIFE Page 3 .B. NO. (1) For a first offense, shall be fined not more than $1,000 or thirty 2 days imprisonment, or both; 3 (2) For a second offense within five years of a previous violation, shall 4 be fined not more than $2,000 or sixty days imprisonment, or both; 5 and 6 (3) For a third or subsequent violation within five years of a previous 7 violation, shall be fined not more than $3,000 or ninety days 8 imprisonment, or both. 9 (g) In addition to any other penalty imposed under this section, a person 10 violating this section shall be subject to: 11 (1) An administrative fine of not more than $1,000 for each aquatic life 12 specimen sold; 13 (2) Seizure and forfeiture of any taken aquatic life specimens, 14 commercial marine license, vessel, and equipment; and 15 (3) Assessment of administrative fees and costs, and attorney's fees and 16 costs. 17 (h) The division of aquatic resources of the department shall submit an annual 18 report on the effectiveness and enforcement of this section to the legislature no 19 later than twenty days prior to the convening of each regular session." 20 21 SECTION 2. Section 188 -31 Hawai`i Revised Statutes, is amended to 22 read as follows: 23 " §188 -31 Permits to take aquatic life for aquarium purposes. 24 (a) Except as prohibited by law, the department, upon receipt of a written 25 application, may issue an aquarium fish permit, not longer than one year in 26 duration, to take aquatic life and to use fine meshed traps, or fine meshed nets 27 other than throw nets, for the taking of marine or freshwater nongame fish and 28 other aquatic life for aquarium purposes. PROHIBITION ON SALE OF AQUATIC LIFE Page 4 .B. NO. [(b) ] a) [ Except as prohibited by law, the ] The permits shall be issued only to 2 persons who can satisfy the department that they possess facilities to and can 3 maintain fish and other aquatic life alive and in reasonable health and who can 4 satisfy the department that the methods of capture, husbandry, and 5 transport are humane and will not result in substantial injury to or 6 death of the taken aquatic life. 7 (2) No person shall take aquatic life for aquarium purposes or use fine s meshed traps or fine meshed nets other than throw nets to take 9 marine or freshwater non -game fish and other aquatic life for 10 aquarium purposes without an aquarium fish permit. 11 (3) No person shall puncture the swim bladder or clip the fins of marine 12 or freshwater fish taken for aquarium purposes. Any aquatic life 13 collected for aquarium purposes shall be handled in a humane 14 manner. 15 [ (c) ] (b) It shall be illegal to sell or offer for sale any fish and other aquatic 16 life taken under an aquarium fish permit unless those fish and other aquatic life are sold 17 alive for a public aquarium [ purposes. ] for public education. 18 (c) The department may adopt rules pursuant to chapter 91 for the purposes of 19 this section. 20 [ (d) For the purposes of this section: 21 (1) "Aquarium purposes" means to hold salt water fish, freshwater nongame fish, or other 22 23 exhibition or display, or for sale for these purposes; and 24 (2) "Aquarium fish permit" means a permit issued by the board for the use of fine 25 mesh nets and traps to take salt water fish, freshwater nongame fish, or other 26 aquatic life for aquarium purposes.]" 27 28 PROHIBITION ON SALE OF AQUATIC LIFE Page 5 .B. NO. 1 SECTION 3. Section 188F -4, Hawai`i Revised Statutes, is amended to 2 read as follows: 3 " §188F -4 West Hawai`i regional fishery management area plan. The 4 department shall develop a West Hawai`i regional fishery management area plan 5 that identifies and designates appropriate areas of the management area as 6 follows: 7 (1) Designates a minimum of [ this ] one hundred per cent of coastal waters in 8 the West Hawaii regional fishery management area as fish replenishment areas in 9 which aquarium fish collection is prohibited; 10 (2) Establishes a day -use mooring buoy system along the coastline of the West 11 Hawaii regional fishery management area and designates some high -use areas 12 where no anchoring is allowed; 13 (3) Establishes a portion of the fish replenishment areas as fish reserves where no 14 fishing of reef - dwelling fish is allowed; [ and ] 15 (4) Designates areas where the use of gill nets as set nets shall be prohibited[.-]; 16 (5) Identifies the West Hawai`i regional fishery management area as the area from the 17 northernmost point of the west coast to the southernmost point of the west coast 18 of the Island of Hawai`i, and out from the high water line to 1500 meters depth; 19 (6) Prohibits the collection of reef - dwelling aquatic life except for human 20 consumption or for sale for human consumption, including the use of bait; and 21 (7) This section shall not apply to a person exercising a customary and traditional 22 right for subsistence, cultural, or religious purposes, subject to the right of the 23 State to regulate that right, including native Hawaiian gathering rights and 24 traditional cultural practices as authorized by law or as permitted by the State 25 pursuant to article XI, section 7 of the Hawai`i State Constitution." 26 27 PROHIBITION ON SALE OF AQUATIC LIFE Page 6 .B. NO. t SECTION 4. Section 189 -11, Hawai`i Revised Statutes, is amended to 2 read as follows: 3 4 " §189 -11 Receipts in duplicate. Every commercial marine dealer shall issue 5 receipts to the person from whom marine life is obtained and shall provide the 6 following information in the receipt: 7 (1) The date of the issuance; 8 (2) The name of the person to whom the receipt is issued; 9 (3) The following information with respect to each of the varieties of 10 marine life as the department shall require including: 11 12 13 14 15 [ {4)- weight, the 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 5. Section 188 -31.5, Hawai`i Revised Statutes, is repealed. (A) The weight in pounds of each of the varieties received; and (B) The numbers of marine life when they average a pound or more; and (C) The price per pound paid; and number and species of the fishes; and (4) The signature of the dealer who issues the receipt. Any dealer taking the dealer's own marine life or handling any marine life taken by commercial marine licensees working for or with the dealer, shall make out the same receipt, giving market price for the marine life as prevails on the date of receipt. A duplicate copy of this receipt shall be kept on file at the premise where the marine life was sold by the dealer issuing the same for a period of twelve months from the date of issuance, and the duplicate copy shall be available for inspection upon the demand of any conservation officer authorized to enforce the laws of the State." PROHIBITION ON SALE OF AQUATIC LIFE 1 2 3 4 5 6 7 8 9 New statutory material is underscored. 10 11 12 Page 7 .B. NO. [ §188 31.5 Aquarium fish for export, monthly count. The department of land and natural resources shall adopt rules in accordance with chapter 91 to monitor the aquarium fish catch report and fish dealer's report for export of aquarium fi-s-11 taken from the waters of the State for aquarium purposes pursuant to section 188 31. A monthly count of the quantities taken of each individual 1 SECTION 6. Statutory material to be repealed is bracketed and stricken. 13 14 SECTION 7. This Act shall take effect upon approval by the Legislature. INTRODUCED BY: PROHIBITION ON SALE OF AQUATIC LIFE EXHIBIT B JUSTIFICATION SHEET PROPOSER: Council Of The County of Hawai`i TITLE: RELATING TO PROHIBITION TO SALE AQUATIC LIFE FOR AQUARIUM PURPOSES PURPOSE: MEANS: To preserve our fishery resources in our coastal marine water, it shall be unlawful for any person at any time to knowingly or intentionally sell or offer to sell for aquarium purposes, aquatic life taken from any of the waters within the jurisdiction of the State. This section does not apply to gathering rights, traditional, cultural, or religious practices, or for taking of aquatic life for the purpose of human consumption, including bait. Special permits for bona fide purposes of scientific research or in an aquarium operated for the benefit of public education may be provided by the department of land and natural resources. Amendment of chapter 188, Hawai`i Revised Statutes to preclude aquarium fish collection for the sale of aquatic life to be held in captivity as pets or for exhibition, except as defined above, eliminate the inhumane capture of aquatic life, protecting our reefs and its aquatic life for the benefit of residents and tourists. Designates the West Hawai`i regional fishery management area as the area from northernmost point of the west coast to the southernmost point of the west coast of the Island of Hawai`i, and out from the high water line to 1500 meters depth. JUSTIFICATION: Collection of our reef fish, even endangered species, has devastated our marine resources. Aquatic life lives in balance with the reef finding sustenance, keeping the reef healthy, providing a living laboratory for scientists and marine water enthusiasts, and providing sustenance for humans and aquatic life. Scientific studies have shown that many species of fish are not recovering from the heavy collection of aquatic life even though 30% of the reef in West Hawai`i is in Fish Replenishment Areas. The inhumane method of capture and bringing such aquatic to the surface needs to be stopped.