Court says the slavers don’t (can’t?) operate in Hawaii waters. They didn’t address the core question of how the persons “held on board” could be issued a fishing license. And the Lege has required info on them as a result which will help trafficking NGOs.
FOR IMMEDIATE RELEASE August 11, 2022
Paia, Maui — The Hawai’i Supreme Court affirmed that longline fishing is not permitted in Hawai’i state waters in a memorandum opinion issued today.
Native Hawaiian waterman and Pa’ia resident Malama Chun had filed an appeal against the state BLNR regarding his petition challenging DLNR’s practice of issuing licenses to foreign nonimmigrant fishermen refused landing privileges and confined to their ships while in port.
Chun originally filed his petition in April, 2017. The BLNR first denied the petition on the grounds that Chun lacked standing. Chun appealed and the Maui Environmental Court reversed that decision in December, 2017, sending it back to the BLNR to decide the merits of Chun’s petition.
The BLNR then decided that foreign fishermen who have been denied entry into the United States and are confined to their ships pending deportation are “lawfully admitted to the United States” and therefore permitted to obtain commercial marine licenses.
State law restricts the issuance of commercial fishing licenses to persons “lawfully admitted to the United States” Foreign fishermen working in the longline fishing industry are refused permission to land in the United States by Immigration and Customs Enforcement and are also ordered deported.
However, using a loophole, ICE authorizes the fisherman’s boat captain to hold the fisherman’s passport and the deportation order and allow the boat captain to determine when the deportation is to occur. To enforce the deportation order, the piers at which the fishing boats dock are heavily militarized and access is restricted — a practice criticized by the Human Rights Institute in its 2019 report of forced labor in Hawaii’s longline fishing industry.
The Supreme Court narrowly ruled that the legislature intended to limit “state waters” under the licensing statute to 12 nautical miles from shore and not out to the 200 mile exclusive economic zone. In so ruling, the Court declined to address the BLNR’s conclusion that a person refused admission to the United States is nevertheless also lawfully admitted to the United States.
The holding is also limited by the legislature’s passing of Act 43 last year which radically changed commercial marine licenses processes. Vessels, instead of individuals, are now issued commercial marine licenses.
In response to concerns over human rights abuses on board longline vessels including Chun’s petition, longline fishing vessels must report the following information to the state annually in obtaining vessel licenses: the identity, nationality, arrival date and departure date of crew members of each vessel.
Chun’s attorney, Lance D. Collins, added: “While we are disappointed in the narrow ruling of the Court, the court’s decision and the new reporting requirements of Act 43 will help to limit the more excessive abuses of vulnerable foreign crewmembers in the longline industry.”
Attorney Bianca Isaki also served as co-counsel for Malama Chun.
Contact: Lance D. Collins lawyer@maui.net 808-243-9292