By N. Mahina Tuteur, Post-J.D. Teaching and Research Fellow
During the Spring Semester 2017, the Environmental Law Clinic took on an important project assisting a community-driven effort to preserve natural and cultural marine resources on the North Kona coast in Kaʻūpūlehu. This continues the work that the Clinic started in the Fall Semester 2016.
The Kaʻūpūlehu Marine Reserve was established in July 2016 with the amendment of the administrative rules for the West Hawaiʻi Regional Fishery Management Area. Covering waters off a 3.6-mile stretch of coastline between Kalaemanō to Kīkaua Point, the Reserve includes a nearshore “rest” area, within which no take of marine species is allowed, as well as a “limited-take” area, within which select species may be caught. Grounded in concepts of kuleana and mālama ʻāina, the Reserve is a modern embodiment of traditional management principles, which allows the fishery to regenerate by limiting gathering for a period of time.
The effort to create the Reserve, called Try Wait, was championed by kupaʻāina – families who have lived in Kaʻūpūlehu since time immemorial – who observed the drastic decline of the fishery, and coordinated through the Kaʻūpūlehu Marine Life Advisory Committee. After over twenty years of extensive outreach and education efforts, scientific study, and community-based planning, the kupaʻāina of Kaʻūpūlehu advocated for a ten-year rest period so that fish and other marine life within the Reserve can multiply and replenish the reef, ensuring that traditional, subsistence, and cultural practices can be sustained for future generations. Although the community has taken a cultural approach to kapu (or rest) the area, the Reserve has sparked opposition from those who claim it infringes on traditional and customary Native Hawaiian rights to fish and gather.
Students are conducting factual and legal research to help the community better understand the existing legal framework and implications for their rights, including the continued exercise of traditional and customary Native Hawaiian practices both within and outside the Reserve. By engaging with legal, scientific, and cultural experts and making recommendations to community leaders, students are actively working to protect the traditional and customary practice of mālama ʻāina and to return ʻāina momona (abundance) to Kaʻūpūlehu’s coastal waters. Some students in the Fall Semester 2016 Clinic were so inspired that they are continuing to work with the Clinic this spring.
A critical part of this effort involved a site visit on February 17-19, 2017, during which students toured the makai reaches of Kaʻūpūlehu from Kūki‘o to Kahuwai Bay, explored the makai boundaries of the rest area and ahupuaʻa by boat to view ahupuaʻa boundaries and important cultural sites from the ocean, and also participated in a service project at the beautiful Hoʻola Ka Makanaʻā Kaʻūpūlehu Dryland Forest. Clinicians also met with community leaders to discuss desired outcomes.
This project would not have been possible without the kōkua of many partners. Mahalo piha to the Office of Hawaiian Affairs and Wayne Tanaka in particular, Aunty Hannah Kihalani Springer, Aunty Leinaʻala Keakealani Lightner, Kuʻulei Keakealani, Mike and Alohi Nakachi, Chad Wiggins, David Chai, Paola Pagan, and the ʻohana at Hoʻola Ka Makanaʻā Kaʻūpūlehu Dryland Forest.
In addition to the Environmental Law Clinic’s work, the Office of Hawaiian Affairs and Ka Huli Ao Center for Excellence in Native Hawaiian Law partnered to facilitate a three-part panel discussion series for the community of West Hawai‘i that focused on the evolution of traditional and customary Native Hawaiian rights law. This discussion series featured experts in this area who discussed how the laws related to traditional and customary practices have been asserted to defend Native Hawaiian rights in various contexts. The objective is to empower communities to proactively assert the right to mālama ‘āina, and thereby be better able to manage and support the resources that are the foundation of traditional and customary Native Hawaiian practices. The panels were held on February 4, March 4, and April 1, 2017.