When President Clinton announced the establishment of an ecosystem reserve that would limit fisheries and lobstering on the Northwestern Hawaiian Islands, he may have overstepped his legal authority, according to the director of the Western Pacific Regional Fishery Management Council.
"We have asked the question, ‘Where is the authority to close a fishery permanently?’" said Kitty Simonds, whose agency is proceeding with plans for the creation of fisheries regulations that it says are based on science.
Although no final order has been issued, the Clinton administration has announced the intent to create the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve as well as a national marine sanctuary on the Northwestern Hawaiian Islands. The authority to do so was granted by Congress in amendments to the National Marine Sanctuaries Act.
The effort has produced a controversy in Hawai‘i, placing environmentalists, conservation-minded Hawaiians and some fishermen on one side, and fisheries scientists and other fishermen on the other. Those who support Clinton’s move say the precious biological resources of the archipelago that extends northwest from Kaua‘i need careful protection. The fishery management council and those in the lobster and bottom-fishing industries argue that existing and proposed regulations are adequate protection.
Simonds said Congress gave the authority to regulate fisheries to her agency, through the Magnuson-Stevens Fishery Conservation and Management Act. She questions whether a president using executive powers can directly regulate fisheries.
Paul Achitoff, a lawyer who has argued a number of fisheries-related cases on behalf of the Earthjustice Legal Defense Fund, said the issue Simonds is raising may be premature.
"My understanding is that it (the president’s announcement) is intended to lead to an ultimate legal structure, and that there is a process under way," he said.
The federal government has held hearings throughout the state to gather public testimony and is preparing a detailed executive order for Clinton to issue before he leaves office at the end of this week.
"We expect it any day now," Simonds said.
Clinton proposed a total ban on fishing in about 5 percent of the 84 million-acre area of reefs. It would allow fishing to continue at present levels in other areas.
The Western Pacific Regional Fishery Management Council has just issued its draft management plan and environmental impact statements for coral reefs throughout Hawai‘i and other Pacific island areas, including Palmyra Atoll and Kingman Reef. Simonds said she expects more executive orders aimed at limiting fishing and other uses on some of those other islands as well.
In most areas, the anticipated presidential orders would create more restrictive conditions on uses within the waters near the islands and reefs. But in a few, the council’s proposals are more restrictive.
The council’s draft calls for a range of marine protected areas that limit fishing. In the Northwestern Hawaiian Islands, it proposes no fishing at all from shore to a depth of 60 feet around all islands, and no fishing at all out to waters 300 feet deep off French Frigate Shoals, Laysan and the northern half of Midway Atoll. The southern half of Midway would be authorized for recreational and catch-and-release fishing, but not commercial fishing.
Special permits would be required for limited fishing in waters 60 to 300 feet deep around others of the Northwestern Hawaiian Islands.
