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signature to help protect Papahānaumokuākea!

Published by jalbertini on January 13th, 2025 in Climate Change, Social Justice, Take Action!.

Northwestern Hawaiian Islands hui

URGENT: Please add your signature to help protect Papahānaumokuākea!

(Email to: NWHIhui99@pm.me)

Deep concerns about the Proposed Commerce “Sanctuary” Designation

Aloha,

On December 13, 2024, the Department of Commerce released NOAA’s Final Environmental Impact Statement (FEIS) on the designation of their proposed Papahānaumokuākea National Marine Sanctuary.

There is overwhelming public support for the strongest possible protection of the cultural and natural heritage of remote and fragile Papahānaumokuākea, demonstrated in hundreds of public hearings and meetings and over 100,000 testimonials submitted to federal and state officials over the past quarter of a century, which led to some of the strongest protections for biodiversity and Indigenous rights on the planet. The region has been protected in a bipartisan manner by four U.S. Presidents over the span of 100 years.

We resolutely support the provision of the strongest possible protections for Papahānaumokuākea including the strongest existing protections found in the NWHI Coral Reef Ecosystem Reserve, the NWHI State Refuge, USFWS Refuges, and the Papahānaumokuākea Marine National Monument.

For this reason, we oppose the harmful plan to designate a damaging Department of Commerce “sanctuary” to overlay the strongly protected and fragile ecosystem of Papahānaumokuākea, because it poses an enormous threat to Native Hawaiian rights and over a century of biodiversity protections.

The “sanctuary” proposed by the Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) is a Trojan Horse designed to overlay all existing protections and introduce commercial exploitation, suppress hard-won Kānaka Maoli (Native Hawaiian) rightsi, and eliminate biodiversity protection authority of the US Fish and Wildlife Service (USFWS) in the proposed “sanctuary,” while inviting prohibited Wespac-run fisheries into this fragile area, threatening decades of Papahānaumokuākea cultural rights and wildlife protection.

NOAA falsely claimsii that the proposed Commerce “sanctuary” provides a “safety net” to duplicate and strengthen existing protections in Papahānaumokuākea. Instead, it is poised to vastly weaken existing protections and– if designated – would introduce the permanent threat of currently-banned Wespac fisheries, building them into the Commerce sanctuary structure, without any public review of proposed fishery rules prior to sanctuary designation. This puts Wespac in position to rapidly establish exploitative Papahānaumokuākea fishery rules early in the new presidential administration.

It is important to remember that the world-class strong protections of Papahānaumokuākea Reserve (2000), State Refuge (2005) and Monument (2006) were created as a result of public outrage over decades of NOAA mismanagement and abuse when NOAA’s Wespac fishers and poachers crashed Papahānaumokuākea lobster populations, illegally hooked and killed threatened sea turtles and thousands of highly endangered albatross with longline fishing gear,iii damaged coral reefs, spread contaminants from grounded fishing vessels, conducted unnecessary extractive fishery “research,” and contributed to monk seal starvation.iv Wespac fisheries have long been banned from this fragile region and – to prevent further exploitation and damage under the Department of Commerce – the Office of Hawaiian Affairs (OHA), the U.S. Fish and Wildlife Service (USFWS), and the State of Hawai’i were elevated to formal equal co-management authority over Papahānaumokuākea.

For decades, NOAA has had the chance to do the right thing for Papahānaumokuākea. Distressingly, the proposed sanctuary does not duplicate, reflect or – as required by law – “supplement or complement”v the strong world-class protections and Native Hawaiian cultural rights inherent in the Monument, Reserve, or State Refuge that the people of Hawai’i fought tirelessly to achieve for decades.  Instead, the Department of Commerce proposes to overlay Papahānaumokuākea with an extraordinarily weak and damaging Commerce regime.

If a rollback of existing safeguards by a future president or governor occurs, the existing strong protections could immediately be replaced by the damaging rules of this proposed Commerce “sanctuary” – should it be designated – which:

  • Suppresses Kānaka Maoli rightsvi by excluding the Office of Hawaiian Affairs (OHA) – the sole agency officially representing Native Hawaiian rights – from an equal sanctuary decision-making role, despite serving in that capacity in the Monument; downgrading OHA to a mere “advisory” function in the proposed sanctuary;

  • Eliminates the sole wildlife protection agency, US Fish and Wildlife Service (USFWS), from an equal sanctuary decision-making role despite its 100-year track record in Papahānaumokuākea and its current equal decision-making role in the Monument (similar to OHA);vii Reduces the State of Hawaii’s sanctuary role to a position subordinate to NOAA;

  • Elevates the Department of Commerce to sole decision-maker authorityviii for sanctuary management and the issuance of sanctuary permits, thus preventing checks and balances by OHA, USFWS and the State of Hawai’i against Commerce abuses in the sanctuary, despite the agency’s lengthy and high-impact history of harmful exploitation, vessel groundings, and heavy vessel traffic throughout the area;ix

  • Introduces enormous loopholes, new damaging activities, commercial exploitation at the “fair market value” of Papahānaumokuākeax, and vastly reduced protections compared to Reserve, State Refuge, and Monument; reverses the Reserve’s precautionary “all activities are prohibited” rule and automatically allows all activities except for a short list of prohibitions; reverses the “all rules apply equally to government agencies” principle; weakens requirements for waste-dumpingxi, permitting, etc.xii and – despite enormous invasive algae problemsxiii –eliminates earlier language from the sanctuary DEIS requiring vessel hull inspections for sanctuary permits, clarifying that hull inspections will not be required for sanctuary permits;xiv

  • Opens the door to new high-impact Wespac fisheries despite the fact that Wespac fisheries are banned under existing protections. Astonishingly, NOAA has not even made the proposed fishing regulations public before requesting sanctuary designation, asking that we blindly “trust NOAA” about proposed sanctuary fishing regulationsxv and move ahead to approve a sanctuary designation that builds in an open-ended Wespac fishery where fishing regulations will be issued later, separately, under the new presidential administration – deeply alarming to the general public and to NOAA’s own former General Counsel,xvi but cause for great celebration by Wespac.xvii Meanwhile, NOAA refuses to require that Wespac’s fishery duplicate existing rules requiring that fish caught in Papahānaumokuākea must be consumed inside the Monumentxviii – opening the door to an industrial level of extraction from Papahānaumokuākea through a Wespac fishery, illegal under existing protections. In addition, to the dismay of the Marine Mammal Commission, Wespac’s so-called “non-commercial” fisheries in the proposed sanctuary would be automatically exempted from a wide range of prohibitions including those on dredging, drilling, damaging “any living or nonliving sanctuary resource” and scuba diving xix and would not even need a sanctuary permit for fishing or for other damaging activities.xx

  • Reverses the “rules apply equally to all” principle and exempts all Department of Commerce and Department of Interior agencies from regulations as well as from prohibitions on exploring for minerals, oil, gas, using poisons, explosives, anchoring on coral, drilling, dredging, waste dumping or injuring “any living or non-living sanctuary resource” if their activities are disguised as “exploration” or “research.” xxi NOAA Sanctuary “research” elsewhere has included bioprospecting, high-impact mass marine resource harvesting, and out-of-control commercial tourism (illegal in the Reserve, State Refuge, Monument). In Papahānaumokuākea, NOAA envisions 3,000 dives in a 6-month period in the Commerce sanctuary, should it be designated.xxii NOAA’s highly commercialized loophole-riddled Hawaiian Islands Humpback Whale Sanctuary features repeated deaths and injuries of whales, calves and dolphins– including in 2024. The lack of strong protective rules, allowing tourism to be defined as “research”, and the lack of enforcement and meaningful penalties, leads to vessel collisions with whales and dolphins and the harassment of marine mammals in NOAA’s Humpback Whale “sanctuary,” serving as “an example of what can be expected if Papahanaumokuakea becomes a NOAA sanctuary.”xxiii

  • Gives the green light to poachers and keeps the public in the dark by insisting – for the past 25 years!xxiv – that vessels in Papahānaumokuākea are solely required to use NOAA’s ineffective “Vessel Monitoring System” (VMS) which is visible only to understaffed monitoring and enforcement personnel with “limited resources” and “dedicated staff assets.”xxv NOAA sanctuary will not even require vessels to also keep their Automatic Information System (AIS) devices turned on and transmitting when entering Papahānaumokuākea. For safety reasons, most vessels in remote areas already have AIS devices onboard which publicly broadcast vessel locations.xxvi A legal requirement for AIS would mean that, in addition to VMS monitoring, vessel traffic into Papahānaumokuākea could be tracked and monitored online, for free, by any member of the public which, in theory, should be a welcome addition to NOAA’s weak and ineffective monitoring capacity, if enforcement of protective measures were actually a NOAA goal. NOAA’s own research in 2024 found that (1) NOAA VMS is ineffective and fails to track as much as 50% of the vessel traffic in Papahānaumokuākea compared to AIS monitoring and (2) AIS monitoring showed cargo ships, tankers and even a research vessel – was this NOAA’s own vessel? – in fragile and highly protected “Areas to be Avoided.”xxvii NOAA’s refusal for the past quarter of a century– reiterated again in 2024 – to require the additional use of AIS for vessel monitoring is another example of NOAA’s consistent bad faith, giving a green light to poachers and violators, while blocking public oversight and surveillance of our public trust pu’uhonua.

For the reasons listed above, we, the undersigned, oppose the designation of this proposed Commerce “sanctuary.”

References and citations are listed below.

SIGNATURES:

i OHA repeatedly protested Department of Commerce plans and objected to the “sanctuary” proposal laid out in the DEIS and FEIS. The Department of Commerce ignored OHA’s input. On August 29, 2024, in response to the FEIS, OHA wrote another objection letter to NOAA, stating that, “as a co-trustee with NOAA, U.S. Fish and Wildlife Service, and the State of Hawai’i, OHA plays a crucial role in protecting Native Hawaiian rights and interests.” “[U]nder Sanctuary designation, OHA and other co-trustees and co-managers would be eliminated from [equal decision-making authority and] would be eliminated from these roles and reduced to advisory positions, with the Secretary of Commerce having the power to override any Monument co-Trustee or co-Manager decisions.” (pg.3) OHA insisted that the proposed Sanctuary “must not come at the expense of Native Hawaiian self-determination. Accordingly, we oppose Sanctuary designation at this time.” “OHA is also extremely concerned by both the current and proposed “broad exemption to allow activities and exercises of the U.S. Armed Forces…including the effect of sonar training on the koholā (humpback whales) in the monument.” The Department of Commerce repeatedly ignored OHA’s input. OHA, objection letter addressed to NOAA, “re: Proposed Papahānaumokuākea National Marine Sanctuary Designation,” August 29, 2024, pg 3-5; See also: OHA, objection letter to NOAA, re Proposed PNM Sanctuary Designation, May 6, 2024; FEIS, Vol.K, December, 2024.

ii According to NOAA’s own former General Counsel and the former White House CEQ General Counsel who oversaw the establishment of the Monument, NOAA’s DEIS provided a “false picture of current management” (FEIS, App. K1, pg 268); contained “faulty”, “incorrect” and “misleading” statements (FEIS, Vol K1, pp 56-59). The Department of Interior highlighted NOAA’s “inaccurate description of current permitting and statutory authorities” (FEIS, Vol K, pg 268), deep concerns about NOAA’s proposed Alternative 1 – i.e. it is “inconsistent with Presidential directives” and does “not comply with existing law” (FEIS, Vol K, pg 263). See also “violations of current protections” in NOAA’s “proposed fishing regulations for the MEA…[were] developed without adequate inclusion of the perspectives of the Monument co-managers” (FEIS, Vol K, pg 268)

iii https://www.biologicaldiversity.org/news/press_releases/2009/loggerhead-sea-turtle-12-16-2009.html; https://seaturtles.org/lawsuit-filed-to-stop-illegal-killing-of-albatross-and-sea-turtles/; Hawaii longliners hook, kill thousands of albatross annually – https://www.environment-hawaii.org/?p=3534; https://www.environment-hawaii.org/?p=3237

v For example, Executive Order 13178 establishing the NWHI Coral Reef Ecosystem Reserve, Sec. 5. Implementation., (e) National Marine Sanctuary, specifies that if a sanctuary is designated, it “shall supplement or complement the existing Reserve”

vi“[U]nder Sanctuary designation, OHA and other co-trustees and co-managers would be eliminated from [equal decision-making authority and] would be eliminated from these roles and reduced to advisory positions, with the Secretary of Commerce having the power to override any Monument Co-Trustee or co-Manager decisions.” OHA, objection letter addressed to NOAA, “re: Proposed Papahānaumokuākea National Marine Sanctuary Designation,” August 29, 2024, pg 3; See also: OHA, objection letter to NOAA, re Proposed PNM Sanctuary Designation, May 6, 2024;

vii Department of Commerce, Federal Register notice, Vol 89. No.42, March 1 ,2024, Proposed Papahānaumokuākea Sanctuary Rules states that the Secretary of Commerce can regulate “all activities subject to regulation” in the proposed sanctuary. Article IV. “Per 15 CFR § 922.33, the ONMS Director must make findings prior to issuing a sanctuary general permit”, FEIS Vol1, pg 44. “[U]nder Sanctuary designation, OHA and other co-trustees and co-managers would be eliminated from [equal decision-making authority and] would be eliminated from these roles and reduced to advisory positions, with the Secretary of Commerce having the power to override any Monument Co-Trustee or co-Manager decisions.” OHA, objection letter addressed to NOAA, “re: Proposed Papahānaumokuākea National Marine Sanctuary Designation,” August 29, 2024, pg 3; also NOAA FEIS, Appendix K1, December 2024, pp 263 – 269; USFWS, letter to NOAA;

viii Ibid. See also comments by NOAA’s former General Counsel and the former General Counsel of the White House CEQ, raising concerns about NOAA’s “extremely striking” failure to consult with OHA (FEIS Vol K, pg 167) or incorporate OHA and USFWS into their current equal management roles in the proposed sanctuary (Ibid, pg 176). “It is inconceivable that adding a sixth management designation over these other five [existing] management regimes without including all managers of those five designated protected areas will somehow meet the goal of providing comprehensive and coordinated management of the entire area.” (Ibid, pg 168.) “Adding one more layer of complexity to management would be highly likely to be a negative, not a positive.” (Ibid, pg 169.)

x Sanctuary designation would authorize NOAA to collect fees for “special use” permits” for commercial activities at “the fair market value of the use of sanctuary resources.” FEIS Vol 1, pg 44; FEIS K, pg 36.

xi For example, the Reserve (EO 13196) states that no dumping may occur except for “biodegradable effluent incident to vessel use and generated by a marine sanitation device in accordance with section 312 of the Federal Water Pollution Control Act”, and water generated by routine vessel operations “excluding oily wastes from bilge pumping.” The proposed Commerce sanctuary would allow the dumping of “discharge incidental vessel operations, such as approved marine sanitation device effluent, cooling water, and engine exhaust” (FEIS Vol.1, pg 41) with no requirement that the effluent be biodegradable and without providing specific language “excluding oily wastes from bilge pumping.”

xii Loopholes include: All Department of Commerce and Interior activities self-declared as “research” or “exploration” – which, in other NOAA sanctuaries have included commercial exploitation, tourism and bioprospecting, are exempt from permit requirements, as are Wespac “non-commercial” fishers; prohibitions on waste dumping are weaker than in existing protected areas; “the proposed sanctuary regulations would exempt both the Department of Commerce/NOAA and the Department of the Interior/USFWS from the prohibitions, including the need to obtain a permit or authorization from the Secretary of Commerce in order to conduct scientific exploration or research activities in the MEA.” FEIS, Vol 1, pg 45, pg xvi, December 2024.

xiv Ibid. For the past 24 years, NOAA has continually refused to issue regulations for the Reserve and Monument Expansion Area protections. The Commerce sanctuary “overlay” clearly fails to provide protective language equivalent to that of Reserv, Monument or State Refuge. For example, astonishingly — despite enormous invasive algae problems – NOAA refuses require that vessel hull inspections must be a condition of sanctuary permits. Instead, in the FEIS, NOAA actually removes language originally in the DEIS about mandatory vessel hull inspections as a requirement for sanctuary permits: “NOAA has revised Section 5.3.5 describing adverse impacts to socioeconomic resources and human uses. In the draft EIS, NOAA included a description of vessel hull inspections as a requirement for sanctuary permits.” NOAA then explains that they will not, actually, be requiring hull inspections for sanctuary permits: “Vessel hull inspections are not included in the proposed regulations for the sanctuary; therefore, NOAA has removed the analysis of this impact. They explain that: “Vessel hull inspections are currently required as a permit condition (as indicated under the No Action Alternative in Chapter 4) and would continue to occur under existing Monument management.” FEIS, Vol 1, pg 16. Should Monument protections be rolled back, however, sanctuary rules provide no requirement for vessel hull inspections. This is just one of many examples confirming that (1) should Monument protections be weakened by a president or governor, it is a false argument – in bad faith – to state that “overlaying” existing protections with this sanctuary provides back-up or duplicated protections; (2) as has been the case for the past 24 years, the Department of Commerce, with its commercial interests, continues to refuse to issue protective regulations; and that (3) the “no sanctuary” option already provides these protections while three co-Trustees with powers equal in power to the Department of Commerce continue to prevent egregious Commerce abuses.

xv OHA: “National Marine Fishery Services (NMFS), also an arm of NOAA, has not published or released the draft fishing regulations. This means that no one can review or provide public comments on the fishing regulations for the proposed sanctuary during this public comment period…Without complete information the process is bifurcated. OHA believes this information should have been completed prior to the process for Sanctuary Designation, otherwise it creates an incomplete, bifurcated, confusing and burdensome process on the Native Hawaiians and fishing community.”, OHA letter to NOAA, May 6, 2024, pg 4. Also see page 3, last bullet point on sanctuary designation FAQs: https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/docs/20230512-nmsa-304a5-fishing-regulation-faqs.pdf

xvi According to NOAA’s former General Counsel and the former White House CEQ General Counsel, for “this ecologically and culturally outstanding area, regulation of fishing has been the source of prominent controversy and concern” (FEIS, Appendix K1, December 2024, pg 177). The former General Counsels express alarm about the “stunning” and “disturbing” “omission of proposed fishing regulations” and the lack of “analysis of the effects of proposed fishing.” The National Marine Sanctuaries Act requires that the sanctuary DEIS assess potential future fishing impacts and NOAA’s own documentation indicates that fishing regulations are developed prior to the publication of a sanctuary DEIS.(Ibid, pg 174-175). “The omission of specific, proposed fishing regulations in the DEIS makes it impossible for either the public or the decision-maker to compare the effects of fishing expected under a proposed sanctuary with fishing in the Monument Expansion Area or, alternatively, with the potential effects of fishing if fishing regulations were promulgated for the MEA.” (Ibid, pg 173-174

xvii Wespac December 18, 2024 Press Release – a few days after the release of NOAA’s Commerce Sanctuary FEIS – “New Day on the Horizon for Western Pacific Fisheries (18 December 2024) HONOLULU The Western Pacific Regional Fishery Management Council (Council) ended its 201st meeting on a hopeful note, inspired by the upcoming change in the Federal administration. The Council found that the incoming administration provides a chance to make U.S. fisheries in the Pacific great again.” https://www.wpcouncil.org/press-release-new-day-on-the-horizon-for-western-pacific-fisheries-18-december-2024/;

Wespac response to initiation of Commerce “sanctuary” designation: Wespac Press Release: Fishing Returns to the Northwestern Hawaiian Islands After 15 Years, https://www.wpcouncil.org/fishing-returns-to-the-northwestern-hawaiian -islands-after-15-years-8-december-2022/;

xviii “Of particular concern in the proposed regulation exemption that would permit the removal of fish from the MEA/OSZ. Current Monument rules state that all fish caught within the Monument in both Federal and State waters must be consumed within the Monument, unless being retained for research purposes.” FEIS, Vol K, Testimony of Dr. Narrissa Spies, a member of the Papahānaumokuākea Cultural Working Group.

xix The Marine Mammal Commission expressed alarm at designating a sanctuary when “NOAA has not fully assessed the potential impacts of fishing activities that may be permitted” as a result of designation. The Commission expressed alarm at the exemption for “non-commercial” fishers from prohibitions “including drilling, dredging, abandoning structures, injuring any living resource” etc. FEIS, Appendix K1, pg 230, 232; FEIS, Vol 1, pg 41, December 2024

xx FEIS, Vol 1. Pg 42: “NOAA will also exempt non-commercial fishing authorized under the MSA [Marine Sanctuary Act]…from needing a sanctuary permit” if the fish are not sold, bartered, etc. Instead of using the term “permitted non-commercial fishing activity”, NOAA refers to “lawful non-commercial fishing activity” – no permits are required.

xxi FEIS, Vol 1, pg xvi – loopholes for DoC and DoI “research”, Wespac fishers; weak prohibitions on discharge; “the proposed sanctuary regulations would exempt both the Department of Commerce/NOAA and the Department of the Interior/USFWS from the prohibitions, including the need to obtain a permit or authorization from the Secretary of Commerce in order to conduct scientific exploration or research activities in the MEA.” FEIS, Vol 1, pg 45

xxii FEIS Vol. 2, pg. 27, December 2024 re NOAA’s proposed 3,000 sanctuary dives in 6 months,

 

xxiii According to former Papahānaumokuākea Marine Debris Removal Team Leader, Namele Naipo-Arsiga, “This year, 2024, yielded six confirmed reports of vessel strikes to humpback whales within Hawaii. Within a two week span, there were two confirmed cetacean deaths caused by vessel strikes a dolphin yearling on Kauai and humpback calf on Lanai shores which is in the sanctuary boundaries. There are multiple threats to whales including acoustic disturbances, entanglement, and vessel whale contacts. NOAA knows of these threats yet they allow recreational boating, fishing and tourism within the sanctuary boundaries. These allowed activities conflict with the known appropriate and healthy environment that humpback whales require. Why has NOAA not instituted regulations and prohibitions to facilitate the change necessary to promote the well being of the humpback whales within its sanctuary boundaries? This mismanaged sanctuary is an example of what can be expected if Papahanaumokuakea becomes a NOAA sanctuary.” FEIS, Vol. K, December 2024. See also: https://www.hawaiinewsnow.com/2024/02/24/humpback-whale-calf-injured-waters-o=-maui-after-o=icials-say-it-was-hit-byship/; https://spectrumlocalnews.com/hi/hawaii/news/2024/03/13/dolphin-whale-killed-vessel-strikes-https://mauinow.com/2024/02/23/whale-calf-injury-o=-ma%CA%BBalaea-maui-is-likely-from-a-vessel-strike-boaters-urged-to-keepdistance/;

xxiv In 2000 – a quarter of a century ago – the NWHI Reserve Executive Order 13178 instructed NOAA to use “new technologies” for enforcement and surveillance. NOAA has had twenty-five years to take action and has failed to do so.

xxv NOAA’s admission of “limited resources” for Papahānaumokuākea enforcement and the need to have a “presence in sanctuary waters without having to dedicate staffed assets”. FEIS, Vol K, pg 16, December 2024.

xxvi

Automatic Information Systems (AIS) are a common and effective technology used globally by vessels around the world to monitor traffic around them and to avoid collisions. Most vessels in remote regions such as Papahānaumokuākea already have AIS transceivers on board. Any member of the public can monitor AIS vessel traffic online 24/7, for free, on websites such as marinetraffic.com, vesselfinder.com, and others. Poachers may attempt to evade observation by temporarily turning off the broadcast function of their AIS devices when entering a closed “no take” zone but the “before” and “after” AIS signals prior to and after their criminal activities produce a “signature” which can be observed and documented by any official or any member of the public with internet access and could be acted on, in real time, by enforcement agencies. The failure to require the use of AIS – in addition to NOAA’s ineffective VMS – while claiming to “seek out and develop new tools and technologies for resource protection and monitoring” (FEIS, Appendix K, pg 15) looks like a willful effort by NOAA to ensure that the enforcement of Papahānaumokuākea protections against poaching and environmental destruction remains minimal.

xxvii Described in FEIS, Vol K, pg 14; FEIS Vol 1, pg 103-104

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