Chun v. Board of Land and Natural Resources

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
11-AUG-2022
07:54 AM
Dkt. 33 MO
SCAP-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
MĀLAMA CHUN, Plaintiff-Appellant,
vs.
BOARD OF LAND AND NATURAL RESOURCES, DEPARTMENT OF LAND AND
NATURAL RESOURCES, STATE OF HAWAI‘I, and HAWAI‘I LONGLINE
ASSOCIATION, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CAAP-XX-XXXXXXX; CASE NO. 2CC191000089)
MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and
Circuit Judge Tonaki, in place of Pollack, J. 1, recused)
I. INTRODUCTION
In a petition for a declaratory order (Petition) filed
with the Board of Land and Natural Resources (BLNR), Plaintiff-
Appellant Mālama Chun requested the BLNR hold that the
Department of Land and Natural Resources (DLNR) lacks authority
to “issue commercial [marine] licenses to persons not lawfully
1 Associate Justice Richard W. Pollack retired on June 30, 2020.
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admitted to the United States,” including foreign nonimmigrant
crewmembers on longline fishing vessels. Specifically, Chun
argued that Hawai‘i Revised Statutes (HRS) § 189-5 (2011)
prohibits the DLNR from issuing commercial marine licenses
(CMLs) to persons not lawfully admitted to the United States.
The limitation in HRS § 189-5 applies only to persons
“engage[d] in taking marine life for commercial purposes in the
waters of the State.” HRS § 189-5 (emphasis added). The BLNR
denied Chun’s Petition, concluding, among other things, that
longline fishing vessels do not fish within state waters. The
Circuit Court of the Second Circuit (circuit court) affirmed.
We granted Chun’s application for transfer and conclude that the
DLNR is not prohibited from issuing CMLs to foreign nonimmigrant
crewmembers on longline fishing vessels who fish for highly
migratory species outside of state waters. Because the longline
fishing vessels at issue here do not fish within state waters,
we affirm the circuit court’s order denying Chun’s Petition.
II. BACKGROUND
Hawai‘i’s longline fishing industry consists of
approximately 140 boats that dock in Honolulu Harbor. These
boats fish exclusively for “highly migratory species,” defined
by the Magnuson-Stevens Conservation and Management Act
(Magnuson-Stevens Act) as “tuna species, marlin (Tetrapturus
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spp. and Makaira spp.), oceanic sharks, sailfishes (Istiophorus
spp.), and swordfish (Xiphias gladius).” 16 U.S.C. § 1802.
Federal regulations prohibit longline boats from
fishing in specific areas around Hawai‘i. For example, longline
boats cannot fish closer than approximately fifty miles to the
north and east of the main Hawaiian Islands, and one hundred
miles to the south and west of the main Hawaiian Islands.
Longline fishing is also prohibited in the Exclusive Economic
Zone 2 (EEZ) around the Northwestern Hawaiian Islands, which
extends two hundred nautical miles seaward.
A. BLNR Proceedings
Chun filed his Petition on April 12, 2017, requesting
the BLNR to issue a “declaratory ruling regarding the authority
of the [DLNR] to issue [CMLs 3] to persons not lawfully admitted
to the United States.” Chun contended he was an interested
person under HRS § 91-8 (2012) 4 and thus permitted to “petition
[the BLNR] for a declaratory order as to the applicability of
any statutory provision.” HRS § 91-8.
2 An Exclusive Economic Zone (EEZ) is a region of the ocean where a
coastal country claims exclusive rights to natural resources.
3 HRS § 187A-1 (2011) defines CMLs as “a license issued to take
marine life within or outside the State for commercial purpose.”
4 HRS § 91-8 (2012) states in relevant part: “Any interested person
may petition an agency for a declaratory order as to the applicability of any
statutory provision or of any rule or order of the agency.”
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Chun also argued that HRS §§ 189-2 (2011) 5 and 189-5
“prohibit the [DLNR] from issuing [CMLs] to any person who has
not been lawfully admitted to the United States” including
foreign nonimmigrant crewmembers on longline fishing vessels.
Additionally, Chun contended that issuing CMLs to foreign
crewmembers who are subject to “unfair and illegal labor
practices” contradicts “the Kānāwai Māmalahoe, or law of the
Splintered Paddle, which [was] adopted at [a]rticle IX,
[s]ection 10 of the Hawai‘i State Constitution.” 6
The BLNR denied Chun’s Petition on July 14, 2017,
concluding: (1) Chun is not an “interested person” entitled to a
declaratory order under HRS § 91-8; (2) the issue of whether
commercial fishing companies’ employment of non-citizen fishers
violates article IX, section 10 of the Hawai‘i Constitution is
outside the jurisdiction of the BLNR; and (3) labor practices
are also outside the jurisdiction of the BLNR. However, the
5 HRS § 189-2(a) (2011) states, in relevant part: “No person shall
take marine life for commercial purposes whether the marine life is caught or
taken within or outside of the State, without first obtaining a commercial
marine license as provided in this section.”
6 Article IX, section 10 of the Hawai‘i Constitution states:
The law of the splintered paddle, [kānāwai māmalahoe],
decreed by Kamehameha I--Let every elderly person, woman
and child lie by the roadside in safety--shall be a unique
and living symbol of the State's concern for public safety.
The State shall have the power to provide for the safety of
the people from crimes against persons and property.
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circuit court 7 reversed, concluding that “Chun made a prima facie
showing that he is an interested person under HRS § 91-8” and is
thus “entitled to a hearing” if the BLNR contested his prima
facie showing that he is an interested person.
On remand, Hawai‘i Longline Association (HLA)
intervened and filed a brief in opposition to Chun’s Petition
contending, among other things, that “[t]he areas in which the
Hawai‘i longline fishery operates are regulated by [f]ederal
law,” and “[f]ederal law explicitly allows the use of foreign
crews on U.S. vessels fishing for highly migratory species . . .
.” Moreover, HLA argued that the plain language of HRS § 189-5
limits fishing for commercial purposes in the waters of the
state and has no application to commercial fishing that takes
place exclusively outside of state waters. HLA contended that
federal law “expressly permits” foreign nonimmigrant crewmembers
to fish for highly migratory species, and the Magnuson-Stevens
Act, 16 U.S.C. §§ 1801–1891d, reserves “exclusive fishery
management authority over all fish” in the EEZ to the federal
government. 8 HLA argued that “because the Hawai‘i-based
7 The Honorable Joseph E. Cardoza presided.
8 Specifically, 16 U.S.C. § 1811(a) states that “[e]xcept as
provided in section 1812 of this title, the United States claims, and will
exercise in the manner provided for in this chapter, sovereign rights and
exclusive fishery management authority over all fish, and all Continental
(continued . . .)
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longline fishing fleet fishes only in the EEZ and beyond, and
not in state waters, [f]ederal law applies, and precludes state
regulation that is inconsistent with [f]ederal fishing laws and
regulations.”
The BLNR issued its findings of fact, conclusions of
law, and order denying Chun’s Petition on February 27, 2019.
The BLNR first noted that Chun’s Petition “ultimately turns on
the meaning of two phrases: ‘in the waters of the State[,]’ and
‘lawfully admitted.’” 9 In its findings of fact, the BLNR found,
as relevant here:
5. There is no evidence in the record that the
presence of the crewmembers in Honolulu Harbor . . . is
illegal in the eyes of the federal government . . . .
(. . . continued)
Shelf fishery resources, within the exclusive economic zone.” (Emphasis
added.)
9 The BLNR held that foreign crewmembers of longline fishing
vessels were “lawfully admitted” for the purposes of HRS § 189-5. The BLNR
acknowledged that “lawfully admitted” does not always mean “lawfully admitted
to permanent residency[,]” citing Takahashi v. Fish & Game Comm’n, 334 U.S.
410 (1948) and Dandamudi v. Tisch, 686 F.3d 66 (2d Cir. 2012) as examples of
cases where foreign individuals were lawfully present in the United States
without being “lawfully admitted to permanent residency.”
The BLNR also found that the legislature merely intended to
differentiate “[a]liens not admitted to the United States, as distinguished
from aliens who are legally in the United States[.]” (Emphasis omitted.)
Further, the BLNR noted that various federal statutes and regulations
establish the procedure for foreign crewmembers to obtain landing privileges;
however, nothing in these statutes or regulations suggests that foreign
crewmembers are illegally present if their landing privileges are not granted
and they remain detained on the vessel.
Despite the BLNR’s conclusions of law on this issue, we decline
to determine whether foreign crewmembers are “legally admitted” for purposes
of HRS § 189-5 as we hold that longline fishing vessels do not in fact fish
within the state marine waters. See discussion infra Section IV(B).
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6. The longline vessels based in Honolulu Harbor
fish exclusively for “highly migratory species” as that
term is defined in the Magnuson-Stevens Act . . . .
7. Because of [f]ederal regulations, the longline
boats do not fish closer than fifty miles to the north and
east of the main Hawaiian Islands, and one hundred miles to
the south and west of the main Hawaiian Islands.
. . . .
9. Most fish caught by the longliners are taken
beyond the Hawai‘i EEZ, from the “high seas” or
international waters.
(Citations omitted.)
The BLNR explained that “[e]ven if [foreign
nonimmigrant] crewmembers . . . were not ‘lawfully admitted[,]’
HRS § 189-5 does not prohibit them from receiving a CML.” It
additionally noted that the statute only prohibits foreign
nonimmigrant crewmembers from taking marine life within state
waters and “does not prohibit [foreign nonimmigrant crewmembers]
from taking marine life outside the waters of the State and
bringing it into the State for sale.” The BLNR concluded, as
relevant here:
3. [HRS § 189-5] limits the prohibition on taking
marine life for commercial purposes by [foreign
nonimmigrant crewmembers] to marine life taken “in the
waters of the State.”
. . . .
5. This language, combined with HRS § 189-2(a)
regarding the requirement of getting a CML, means that in
addition to someone who actually takes marine life for
commercial purposes, someone who takes marine life outside
the waters of the State, but brings it into the State for
sale, must get a CML. It does not, however, change the
fact that the HRS § 189-5 ban only refers to marine life
actually caught in the waters of the State.
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. . . .
7. HRS § 189-5 does not prohibit non-admitted aliens
from working on boats that take marine life outside the
waters of the State and bring it into the State for sale.
8. Petitioner makes an argument based on a provision
in HRS § 189-2(a) that a CML is required if one takes
marine life for commercial purposes “whether the marine
life is caught or taken within or outside of the State[.]”
The short answer to this is that HRS § 189-5 prohibits non-
admitted alien commercial fishing only “in the waters of
the State.”
9. Petitioner may have been led astray, however, by
inartful drafting of HRS § 189-2(a) . . . .
10. Read literally, HRS § 189-2(a) asserts that
anyone taking marine life for commercial purposes anywhere
on Earth must get a Hawai‘i CML, because everywhere on Earth
is either “within or outside of the State.” This is an
absurd reading. Hawai‘i cannot make people taking marine
life in the Atlantic Ocean get a CML, absent some nexus to
Hawai‘i[.]
. . . .
13. In any case, [ ] whatever the territorial reach
of HRS § 189-2(a) may be, HRS § 189-5 applies only “in the
waters of the State.”
The BLNR next concluded that the longline fishing
vessels do not fish within the waters of the state. The BLNR
explained that when HRS § 189-5 was first enacted by Act 211,
SLH 1949, the words “waters of the Territory of Hawai‘i” meant a
band around the islands extending three nautical miles from the
shore. 10 After statehood, HRS § 189-5 was amended so that
10 To support this proposition, the BLNR cited The King v. Parish, 1
Haw. 36, 58 (Haw. Kingdom 1849); Carter v. Territory of Haw., 14 Haw. 465,
468-69 (Haw. Terr. 1902); In re Bishop, 35 Haw. 608, 643-44 (Haw. Terr.
1940); Civ. Aeronautics Bd. v. Island Airlines, Inc., 235 F. Supp. 990, 1007
(D. Haw. 1964), aff’d, 352 F.2d 735 (9th Cir. 1965); and Dettling v. United
States, 983 F. Supp. 2d 1184, 1201 (D. Haw. 2013).
(continued . . .)
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“waters of the Territory” became “waters of the State.” The
BLNR then “consider[ed] whether ‘waters of the State’ now means
something different.” The BLNR recognized that its declaratory
order could not be a definitive determination of Hawai‘i’s
current oceanic boundaries. However, it held that “for the
purposes of this declaratory order it is enough to demonstrate
that the longline fishing boats do not fish within Hawai‘i’s
oceanic boundaries, even given the most expansive possible
interpretation of those boundaries.” The BLNR then considered
several alternative interpretations of “waters of the State” and
concluded that longline fishing vessels do not fish within the
ambit of any interpretation.
In relevant part, the BLNR considered whether “waters
of the State” includes archipelagic waters. The BLNR concluded
that:
31. The 1978 Constitutional Convention proposed an
amendment to [article XV, §1 of the state constitution] to
add “and archipelagic” to the first sentence of this
provision, which now reads “The State of Hawai‘i shall
consist of all the islands, together with their appurtenant
reefs and territorial and archipelagic waters[.]”
32. The Proceedings of the 1978 Constitutional
Convention do not fully explain what was meant by
“archipelagic waters” . . . .
(. . . continued)
The BLNR noted that it is not clear whether the “1949 Legislature
considered the channels to be within the boundaries of the Territory.”
However, the BLNR held that the inclusion or exclusion of the channels “does
not matter” because “longline boats do not fish in the channels.”
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. . . .
34. Art. 46-47 of the . . . United Nations
Convention on the Law of the Sea (1982) (“UNCLOS”) define
circumstances under which an island nation (not an American
state) may claim “archipelagic waters”, and the extent of
such waters. Essentially, the boundary lines are drawn
from points on the outer islands, but cannot be more than
125 nautical miles long. Drawing such lines from various
points on the main Hawaiian Islands does not enclose any
areas more than fifty miles to the north or east of the
islands, or more than one hundred miles to the west or
south. Thus, even assuming Hawai‘i’s oceanic boundaries now
encompass “archipelagic waters” as so defined in
international law . . . these longline boats do not fish
within them.
(First emphasis in original.)
The BLNR also interpreted “waters of the State” to
mean the “state marine waters,” which was defined in 1990 Haw.
Sess. Laws Act 126, §1 at 232 to include the “territorial sea.” 11
Regarding Act 126, the BLNR concluded that:
36. Hawai‘i’s statutes now apparently claim a twelve
nautical mile wide territorial sea. Act 126, SLH 1990,
amended several sections of the Hawai‘i Revised Statutes by
adding a definition of “state marine waters”, including one
section currently codified as HRS §189-1.5:
State marine waters. As used in this chapter,
state marine waters shall be defined as extending
from the upper reaches of the wash of the waves on
shore seaward to the limit of the State’s police
power and management authority, including the U.S.
territorial sea, notwithstanding any law to the
contrary.
11 The BLNR defined “territorial sea” or “marginal sea” as the
oceanic boundaries of a state or nation, where the state or nation exercises
sovereignty, except for certain rights of passage under international law.
Presidential Proclamation 5928, dated December 27, 1988, extended the
“territorial sea” from the former three-mile area to then encompass twelve
nautical miles from the “baseline.”
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37. According to Conf. Com. Rep. 6 on H.B. 2233,
which became Act 126:
The purpose of this bill is to define the
boundaries of the state marine waters as extending
twelve nautical miles seaward from the upper reaches
of the wash of the waves on shore and the
archipelagic waters. It also defines the territorial
sea as the waters and seabed extending seaward to
twelve nautical miles from the baseline as determined
in accordance with international law and as
established by Presidential Proclamation 5928, dated
December 27, 1988.
(Emphasis added.) The BLNR ultimately held that “longline boats
do not fish in this twelve-mile belt.” (Emphasis added.)
The BLNR also clarified that article XI, section 11 of
the Hawai‘i Constitution does not determine, claim, or amend
Hawai‘i’s boundaries. 12
12 Article XI, section 11 of the Hawai‘i Constitution provides that:
The State of Hawai‘i asserts and reserves its rights and
interest in its exclusive economic zone for the purpose of
exploring, exploiting, conserving and managing natural
resources, both living and nonliving, of the seabed and
subsoil, and super adjacent waters.
Article XI, section 11 merely asserts the State’s rights to
regulate and exploit within the EEZ. The BLNR also identified the State’s
reserved authority within and outside “the territorial sea”:
41. When the Legislature dealt with the
controversies over longline fishing near the Hawaiian
Islands, it banned it in “the territorial sea.” HRS §189-
2.5(b). Outside the territorial sea, it asserted only that
Hawai‘i could jointly enforce, with the federal government,
regulations established under the federal regulatory system
referred to above. HRS §189-2.5(c); HRS §189-3.5.
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The BLNR then rejected Chun’s argument that “issuing
CML to the alien crewmembers would authorize the crewmembers to
fish illegally.” The BLNR explained that:
43. HRS §189-5 does apply within Hawai‘i’s
territorial boundaries. The CML would not authorize the
holder, if he or she were an alien “not lawfully admitted,”
to fish within Hawai‘i’s territorial seas, which are “waters
of the State.” The fact that a person holds a CML does not
authorize the person to ignore other laws regarding the
taking of marine life. . . . The fact that a CML holder may
possibly violate state laws in the future does not justify
denying them a CML.
44. That these alien crewmembers—even if not
“lawfully admitted” as the term is used in HRS §189-5—can
lawfully fish somewhere without violating that statute, for
example, on the high seas, is enough to deny this Petition,
because it asks the Board to categorically deny that they
can be issued CML’s [sic]. Because they can fish on the
high seas and/or the EEZ without violating Hawai‘i law, it
makes sense to issue them a CML when they bring the catch
to port. This is not prohibited by HRS §189-5 or any other
law.
45. [Chun] conceded that HRS §189-5 was
“unenforceable” in the EEZ.
B. Circuit Court Proceedings
Chun appealed to the circuit court, and filed a motion
for summary judgment. On July 1, 2019, the circuit court filed
an order affirming the BLNR’s decision and denied Chun’s motion
for summary judgment. The circuit court ruled, inter alia, that
“[HRS §] 189-2 applies in general to the issuance of [CMLs] and
does not contain a limitation relative to the issuance of a
license concerning being lawfully permitted to be in the United
States.” The circuit court additionally concluded:
[HRS §] 189-5 makes it unlawful for any person who is not
lawfully admitted to the United States to engage in the
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taking of marine life for commercial purposes in the waters
of the [S]tate of Hawai‘i. And here, the fishermen in
question are not engaged in the taking of marine life for
commercial purposes in the waters of the State of Hawai‘i.
And that specific provision here, in the Court’s view
respectfully, is controlling.
C. Proceedings on Appeal
On appeal, Chun argues that the circuit court erred in
affirming the BLNR’s order that (1) foreign nonimmigrant
crewmembers were “lawfully admitted” to the United States; (2)
CMLs can be issued to persons not “lawfully admitted” to the
United States; and (3) “a factual record of alien fishers
holding commercial fishing licenses and conducting commercial
fishing within state waters, was a required element of relief
sought by the Petition.”
The State’s answering brief argues that the
legislative history of HRS § 189-5 reveals the legislature’s
intent to ban “[a]liens not admitted to the United States” – as
opposed to aliens who are legally in the United States – from
commercial fishing in state waters. Therefore, foreign
nonimmigrant crewmembers on longline fishing vessels are
“lawfully admitted” to the United States. Moreover, the State
contended that Chun does not dispute the fact that most longline
vessels fish in waters beyond the EEZ.
HLA reiterates its arguments raised below in its
answering brief.
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III. STANDARDS OF REVIEW
A. Administrative Agency Decisions – Secondary Appeals
Review of a decision made by the circuit court upon
its review of an agency’s decision is a secondary appeal.
The standard of review is one in which this court must
determine whether the circuit court was right or wrong in
its decision, applying the standards set forth in HRS § 91-
14(g) [1993] to the agency’s decision.
Flores v. Bd. of Land & Nat. Res., 143 Hawai‘i 114, 120, 424 P.3d
469, 475 (2018) (alteration in original) (quoting Paul’s Elec.
Serv., Inc. v. Befitel, 104 Hawai‘i 412, 416, 91 P.3d 494, 498
(2004)).
HRS § 91-14(g) (Supp. 2017) states:
Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise
of discretion.
“[U]nder HRS § 91-14(g), conclusions of law are
reviewable under subsections (1), (2), and (4); questions
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regarding procedural defects under subsection (3); findings of
fact under subsection (5); and an agency’s exercise of
discretion under subsection (6).” Flores, 143 Hawai‘i at 121,
424 P.3d at 476 (alteration in original) (internal quotation
marks omitted) (quoting Paul’s Elec. Serv., Inc., 104 Hawai‘i at
416, 91 P.3d at 498).
B. Statutory Interpretation
“Statutory interpretation is a question of law
reviewable de novo.” State v. Wheeler, 121 Hawai‘i 383, 390, 219
P.3d 1170, 1177 (2009) (internal quotation marks omitted).
This court’s construction of statutes is shaped by the
following rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.
When there is ambiguity in a statute, “the meaning of the
ambiguous words may be sought by examining the context,
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning.”
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative
history, or the reason and spirit of the law.
Id. (quoting Citizens Against Reckless Dev. v. Zoning Bd. of
Appeals, 114 Hawai‘i 184, 193–94, 159 P.3d 143, 152–53 (2007)).
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IV. DISCUSSION
A. HRS § 189-5 Does Not Prohibit the DLNR From Issuing CMLs to
Foreign Nonimmigrant Crewmembers on Longline Fishing
Vessels Under HRS § 189-2
This case requires us to consider the provisions of
two statutes, which provide, in relevant part, as follows:
No person shall take marine life for commercial purposes
whether the marine life is caught or taken within or
outside of the State, without first obtaining a commercial
marine license as provided in this section.
HRS § 189-2(a).
It is unlawful for any person who has not been lawfully
admitted to the United States to engage in taking marine
life for commercial purposes in the waters of the State.
HRS § 189-5.
Chun contends that the DLNR violates HRS § 189-5 by
issuing CMLs under HRS § 189-2 to foreign nonimmigrant
crewmembers on longline fishing vessels. We disagree. Rather,
as the BLNR found, “HRS § 189-5 . . . prohibits non-admitted
aliens from the commercial taking of marine life ‘in the waters
of the State.’ It does not prohibit them from taking marine
life outside the waters of the State and bringing it into the
State for sale.” (Emphasis in original.)
1. HRS § 189-2 permits the DLNR to issue CMLs to foreign
nonimmigrant crewmembers on longline fishing vessels
“[T]he fundamental starting point for statutory
interpretation is the language of the statute itself.” Wheeler,
121 Hawai‘i at 390, 219 P.3d at 1177 (quoting Citizens Against
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Reckless Dev., 114 Hawai‘i at 193–94, 159 P.3d at 152–53). HRS §
189-2(a) states, “No person shall take marine life for
commercial purposes whether the marine life is caught or taken
within or outside of the State, without first obtaining a [CML]
as provided in this section.” (Emphasis added.) Our court has
long established that “where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain and
obvious meaning.” Wheeler, 121 Hawai‘i at 390, 219 P.3d at 1177(citations omitted). However, “where a statute is susceptible
of two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such
questions are avoided, our duty is to adopt the latter.” In re
Doe, 96 Hawai‘i 73, 81, 26 P.3d 562, 570 (2001) (quoting U.S. ex
rel Att'y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909));
cf. Clark v. Martinez, 543 U.S. 371, 381 (2005).
Were we to adopt Chun’s interpretation, HRS § 189-2
would require any person taking any marine life anywhere in the
world for commercial purposes to first obtain a CML from the
DLNR. A literal reading of the statute would thus result in an
absurdity; the legislature does not have the power to regulate
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conduct that lacks a cognizable connection to the state. 13
Therefore, we must construe the statute to require a CML only
when the taking of marine life has some nexus to the state. See
State v. McKnight, 131 Hawai‘i 379, 389, 319. P.3d 298, 308
(2013) (“Even where a statute appears unambiguous, the court may
deviate from a literal application of the language in order to
avoid absurdity and give effect to the legislature’s intended
purpose.” (citation omitted)).
The BLNR instead concluded that HRS § 189-2 requires
CMLs in two scenarios that give rise to a Hawai‘i nexus: (1) when
taking marine life within state waters for commercial purposes,
and (2) when bringing marine life taken from outside state
waters for commercial purposes in the state. This
interpretation avoids absurd and unintended results; we thus
conclude that the BLNR’s interpretation of HRS § 189-2 to
require CMLs in the two aforementioned scenarios is correct.
13 Indeed, we note that such a construction would likely violate the
dormant commerce clause. See Healy v. Beer Inst., Inc., 491 U.S. 324, 336
(1989) (“[A] statute that directly controls commerce occurring wholly outside
the boundaries of a State exceeds the inherent limits of the enacting State’s
authority and is invalid regardless of whether the statute’s extraterritorial
reach was intended by the legislature.”); State v. Alangcas, 134 Hawai‘i 515,
536, 345 P.3d 181, 202 (2015) (“The doctrine of the dormant commerce clause
is a result implied from the federal government’s exclusive authority to
control interstate commerce and may require a court to invalidate a state law
that interferes with that authority.” (footnote and citation omitted)); but
see Oral Argument at 13:03, Chun v. Bd. of Land & Nat. Res., -- Hawai‘i --, --
P.3d -–, 2022 WL --, (August 11, 2022) (mem.),
http://oaoa.hawaii.gov/jud/oa/20/SCOA_091820_SCAP_19_501.mp3.
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Cf. State v. Park, 55 Haw. 610, 614, 525 P.2d 586, 589-90 (1974)
(“It is well settled and established in this jurisdiction that
courts are required to construe and interpret a statute where it
is ambiguous, or, absent such ambiguity, where the literal
application of the statute causes an absurd or unjust
result[.]”).
2. HRS § 189-5 prohibits the issuance of CMLs to persons
not “lawfully admitted” to the United States for
purposes of taking fishing only within state waters
In turn, HRS § 189-5 provides, “It is unlawful for any
person who has not been lawfully admitted to the United States
to engage in taking marine life for commercial purposes in the
waters of the State.” (Emphasis added.) Unlike HRS § 189-2,
this statute is unambiguous. See, e.g., Park, 55 Haw. at 614,
525 P.2d at 590 (“[W]here there is no ambiguity in the language
of a statute, and the literal application of the language would
not produce an absurd or unjust result . . . there is no room
for judicial construction and interpretation, and the statute
must be given effect according to its plain and obvious
meaning.”). The statute precludes persons not lawfully admitted
to the United States from taking marine life within state waters
for commercial purposes. Moreover, the statute makes no mention
of the taking of marine life outside of state waters.
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If the legislature intended HRS § 189-5 to prohibit
those not lawfully admitted to the United States from taking
marine life outside of the state for commercial purposes within
the state, we presume it would have said so. See State v.
Demello, 136 Hawai‘i 193, 195, 361 P.3d 420, 422 (2015) (“[T]his
court must presume that the legislature meant what it said and
is further barred from rejecting otherwise unambiguous statutory
language.” (citation omitted)); cf. State v. Haugen, 104 Hawai‘i
71, 76, 85 P.3d 178, 183 (2004). In contrast, the legislature
provided in HRS §189-2 that a CML is required before any person
“take[s] marine life for commercial purposes whether the marine
life is caught or taken within or outside of the State.”
(Emphasis added). The express inclusion of “outside of the
State” in HRS § 189-2 suggests that the legislature
“intentionally and purposely” excluded similar language from HRS
§ 189-5 that would prohibit those not lawfully admitted to the
United States from taking marine life outside of the state for
commercial purposes within the state. See In re Water Use
Permit Applications, 94 Hawai‘i 97, 151, 9 P.3d 409, 463 (2000)
(quoting Gozlon–Peretz v. United States, 498 U.S. 395, 404
(1991)) (“[W]here [the legislature] includes particular language
in one section of a statute but omits it in another section of
the same Act, it is generally presumed that [the legislature]
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acts intentionally and purposely in the disparate inclusion or
exclusion.” (Brackets in original.))
Chun argues that the “DLNR’s issuance of a [CML] to
non-citizen commercial fishers pursuant to HRS § 189-2, without
qualification or limit to the use of those licenses,” violates
HRS § 189-5. He further argues that issuing such a CML
“provide[s] no restrictions on the license-holder and leaves it
entirely to the licensee to determine what restrictions are
placed upon the license by law.” In support of this contention,
Chun cites Alaloa v. Plan. Comm’n of Maui Cnty., 68 Haw. 135,
705 P.2d 1042 (1985), and argues that this court has rejected
the “self-regulation” of licenses.
Chun’s reliance on Alaloa is misplaced. In Alaloa,
this court rejected the Maui Planning Commission’s grant of a
conditional permit to the developer of a large condominium
construction project in a special management area that was
governed by the Coastal Zone Management Act (CZMA).
Specifically, the permit was “conditioned upon retention of a
qualified archaeologist to conduct a further survey and
excavation of the area . . . [and] to determine the significance
of [the] various archaeological sites” located near the
development. Alaloa, 68 Haw. at 136-37, 705 P.2d at 1044. This
court, concluding that the commission erred in granting the
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conditional permit, explained that “the CZMA mandates that
[findings regarding the archaeological significance and
preservation of those sites] must first be made before a
[permit] can be issued.” Id. at 137, 705 P.2d at 1044 (emphases
in original). By granting the permit, the commission created
“self-serving conditions” wherein the developer was allowed to
determine whether it “complie[d] with the policies and
objectives of the CZMA regarding historical and archaeological
significance.” Id. We thus concluded that the commission
violated its duties under the CZMA to ensure that “the proposed
development project[] [was] consistent with the[] [state’s]
policies and objectives” under the CZMA. Id. at 136, 705 P.2d
at 1044.
The Alaloa holding is distinguishable. The DLNR does
not violate HRS § 189-5 by issuing CMLs under HRS § 189-2 to
foreign nonimmigrant crewmembers on longline fishing vessels,
nor does it consign any of its duties under HRS § 189-5 to the
licensee. Certainly, issuing a CML to a foreign nonimmigrant
crewmember on a longline fishing vessel for marine life caught
outside of state waters is permissible under HRS § 189-2 and
additionally complies with HRS § 189-5. These foreign
crewmembers are not left “to determine what restrictions are
placed upon” them as Chun contends; rather, HRS § 189-5
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expressly prohibits them from “engag[ing] in taking marine life
for commercial purposes in the waters of the State.” Alaloa is
thus inapposite.
3. HRS §§ 189-2 and 189-5 are not in conflict with one
another
That HRS § 189-2 makes no reference to HRS § 189-5 is
immaterial. Both statutes relate to the issuance of CMLs, and
“[l]aws in pari materia, or upon the same subject matter, shall
be construed with reference to each other.” Richardson v. City
& Cnty. of Honolulu, 76 Hawai‘i 46, 55, 868 P.2d 1193, 1202
(1994) (alteration in original) (quoting HRS § 1-16 (1985)).
Moreover, “where the statutes simply overlap in their
application, effect will be given to both if possible, as repeal
by implication is disfavored.” Id. (quoting Mahiai v. Suwa, 69
Haw. 349, 356-57, 742 P.2d 359, 366 (1987)). HRS § 189-2
mandates who must have a CML, whereas HRS § 189-5 limits where
persons not lawfully admitted to the United States may engage in
the taking of marine life for commercial purposes. The statutes
are not in conflict with one another as each serves separate and
distinct purposes regarding the same subject matter. See
Richardson, 76 Hawai‘i at 55, 868 P.2d at 1202 (holding that HRS
§§ 46-1.5(6) (Supp. 1992), 46-61 (1985), 46-62 (1985), and 101-2
(1985) do not conflict but rather complement each other because,
read in pari materia, HRS §§ 46-1.5(6) and 101-2 provide
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counties with the power of eminent domain, HRS § 46-61
establishes the public uses for which the counties may use the
power, and HRS § 46-62 establishes the procedures counties must
use “in exercising the power”).
Indeed, a person not lawfully admitted to the United
States may receive a CML pursuant to HRS § 189-2 and would not
violate HRS § 189-5 so long as that individual does not take
marine life within state waters. Construing the statutes in
pari materia: (1) under HRS § 189-2, any person who intends to
take marine life from waters within or outside the state for
commercial purposes within the state must first obtain a CML;
(2) as HRS § 189-2 makes no mention of citizenship status,
individuals not lawfully admitted to the United States are
permitted to received CMLs pursuant to HRS § 189-2; (3) under
HRS § 189-5, individuals not lawfully admitted to the United
States may not engage in taking marine life for commercial
purposes in the waters of the state; and (4) even if individuals
not lawfully admitted to the United States have valid CMLs
pursuant to HRS § 189-2, they are still prohibited by HRS § 189-
5 from “taking marine life for commercial purposes in the waters
of the State.”
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B. Longline Fishing Vessels Do Not Take Marine Life Within
the “Waters of the State” or Hawai‘i’s Territorial Sea
Chun further contends that the “waters of the State”
– under HRS § 189-5 and for purposes of the state’s regulatory
authority – extend 200 miles from Hawai‘i’s shores, to include
the area of the federal EEZ. 14 Thus, Chun argues that HRS § 189-
5 prohibits the foreign longline crewmembers at issue from
“taking marine life for commercial purposes” within 200 miles
off Hawai‘i’s shores. Chun also argues that the state’s
regulatory authority extends no further than the same 200-mile
boundary, meaning that the privileges granted by a CML can only
be exercised within the 200-mile boundary. Taken together, Chun
contends that because the foreign longline crewmembers cannot
fish within the 200-mile boundary, but the privileges of a CML
can only be exercised within the 200-mile boundary, there is no
way for a foreign longline crewmember to lawfully exercise the
privileges of a CML. 15
14 Proclamation No. 5030, 48 Fed. Reg. 10605 (Mar. 10, 1983)
proclaimed that the EEZ “extends to a distance 200 nautical miles from the
baseline from which the breadth of the territorial sea is measured.”
15 At oral argument, counsel for Chun argued:
The issue basically boils down to the State cannot
issue licenses to individuals that can basically never
exercise the privileges granted under that license. . . .
Our position is that there is no place within the state’s
jurisdiction under the statute that these individuals can
take [CMLs]. . . . In this instance, there’s no . . . where
(continued . . .)
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We reject Chun’s premise that under the relevant
statutory framework, “waters of the State” extend 200 miles from
Hawai‘i’s shoreline to include the entire area of the federal
EEZ. Further, we conclude that the BLNR’s findings that the
longline vessels at issue in this case do not fish within the
“waters of the State,” the state marine waters, or the channels
between the islands, is not clearly erroneous.
1. The state’s statutory authority to regulate longline
fishing extends from Hawai‘i’s shores to the
territorial sea and the archipelagic waters
Chun’s arguments on appeal focus solely on the
intersection of HRS §§ 189-2 and 189-5. HRS §§ 189-2 and 189-5
are general laws in that they address fishing generally and do
not explicitly address longline fishing. As HLA notes, HRS §§
189-2 and 189-5 are not the only statutes applicable to the
longline vessels at issue in this case. HRS § 189-2.5 (2011)
provides specific guidance on longline fishing:
(b) It is unlawful to engage in longline fishing or to sell
or offer for sale, any marine life taken with longline fishing
gear within the boundaries of the State's territorial sea.
. . . .
(. . . continued)
an individual with this license anywhere within the state’s
jurisdiction or management . . . can legally fish.
Oral Argument at 7:50, Chun v. Bd. of Land & Nat. Res., -- Hawai‘i --,
-- P.3d -–, 2022 WL –- (August 11, 2022) (mem.),
http://oaoa.hawaii.gov/jud/oa/20/SCOA_091820_ SCAP_19_501.mp3.
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(d) The State shall have authority to enforce this section
and the rules adopted by the Western Pacific Regional Fishery
Management Council through the National Oceanic and Atmospheric
Administration and incorporated by reference into state law
within:
(1) The State’s marine waters as defined in section 189-
1.5[.]
It is a well-accepted “canon of construction that
statutes that are in pari materia may be construed together,”
State v. Kamana‘o, 118 Hawai‘i 210, 218, 188 P.3d 724, 732
(2008), so that “[w]hat is clear in one statute may be called
upon in aid to explain what is doubtful in another,” HRS § 1-16
(2009). Therefore, because HRS § 189-2.5 is a prohibition on
longline fishing, it is relevant to this court’s analysis.
To summarize these pertinent parts of HRS § 189-2.5:
(1) longline fishing is prohibited within the state’s
territorial sea, and (2) the state’s authority to regulate
longline fishing extends to the boundaries of the state’s marine
waters.
The state’s marine waters are defined by HRS § 189-1.5
(2011) as ”extending from the upper reaches of the wash of the
waves on shore seaward to the limit of the State’s police power
and management authority, including the United States
territorial sea, notwithstanding any law to the contrary.” The
legislative history of HRS § 189-1.5 states:
The purpose of this bill is to define the boundaries of the
state marine waters as extending twelve nautical miles
seaward from the upper reaches of the wash of the waves on
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shore and the archipelagic waters. It also defines the
territorial sea as the waters and seabed extending seaward
to twelve nautical miles from the baseline of the United
States as determined in accordance with international law
and as established by Presidential Proclamation 5928, dated
December 27, 1988. 16
Conf. Comm. Rep. No. 6, in 1990 House Journal, at 756, 1990
Senate Journal, at 759 (emphasis added). Thus, the legislature
intended that “State marine waters” encompassed both the United
States territorial sea, as described in Presidential
Proclamation 5928, and the “archipelagic waters” of the state.
Presidential Proclamation 5928 provides that “[t]he
territorial sea of the United States henceforth extends to 12
nautical miles from the baselines of the United States
determined in accordance with international law.” Proclamation
No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988) (emphasis added).
Thus, we conclude that the territorial sea contemplated in HRS
§§ 189-1.5 and 189-2.5 extend twelve nautical miles from
Hawai‘i’s baseline.
16 President Ronald Reagan issued Presidential Proclamation 5928,
entitled “Territorial Sea of the United States of America,” on December 27,
1988. Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988). In
Proclamation 5928, President Reagan extended the United States’ territorial
sea to “12 nautical miles from the baselines of the United States,” reasoning
that “[e]xten[ding] the territorial sea . . . to the limits permitted by
international law will advance the national security and other significant
interests of the United States.” Id. Proclamation 5928 explicitly states,
“Nothing in this Proclamation . . . extends or otherwise alters existing
Federal or State law or any jurisdiction, rights, legal interests, or
obligations derived therefrom[.]” Id.28
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The legislature also employed the term “archipelagic
waters” in the conference committee report for HRS § 189-1.5 but
did not provide a definition. See Conf. Comm. Rep. No. 6, in
1990 House Journal, at 756, 1990 Senate Journal, at 759. The
1982 United Nations Convention on the Law of the Sea (UNCLOS)
defined the extent of “archipelagic waters” as “the waters
enclosed by the archipelagic baselines drawn in accordance with
article 47 . . . regardless of their depth or distance from the
coast.” UNCLOS art. 49, ¶ 1, Dec. 10, 1982, 1833 U.N.T.S. 397.
Under UNCLOS art. 47, ¶ 1, archipelagic baselines are determined
by drawing straight lines “joining the outermost points of the
outermost islands and drying reefs of the archipelago” to create
an area enclosing the main islands. Id. at art. 47, ¶ 1.
Although the United States has not ratified UNCLOS, the UNCLOS
definition of “archipelagic waters” is widely accepted in
international law. See, e.g., Restatement (Third) of Foreign
Relations Law § 11 cmt. (referencing the UNCLOS definition). As
the BLNR found, the archipelagic waters of Hawai‘i do not extend
“more than fifty miles to the north or east of the islands, or
more than one hundred miles to the west or south.” Importantly,
it is undisputed that longline fishing vessels do not fish
within the archipelagic waters.
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In summary, neither the territorial sea nor the “State
marine waters” encompass the 200-mile area of the federal EEZ.
By prohibiting longline fishing in Hawai‘i’s territorial sea in
HRS § 189-2.5, the legislature intended to prohibit longline
fishing within a 12-mile area. Further, the “State marine
waters,” which the legislature intended to include the
territorial sea and the archipelagic waters, do not encompass
the 200-mile area of the federal EEZ. Therefore, under HRS §§
189-2.5 and 189-1.5, the state’s current statutory authority to
regulate longline fishing does not extend to the outer limits of
the federal EEZ.
2. The longline fishing vessels at issue in this case do
not fish within the “waters of the State,” the state
marine waters, or the channels between the islands
The BLNR’s findings of fact note that “longline boats
do not fish closer than fifty miles to the north and east of the
main Hawaiian Islands, and [not closer than] one hundred miles
to the south and west of the main Hawaiian Islands.” On appeal
to this court, an agency’s finding of fact will be reversed only
where the finding of fact is “[c]learly erroneous in view of the
reliable, probative, and substantial evidence on the whole
record.” HRS § 91-14(g); see Flores, 143 Hawai‘i at 121, 424
P.3d at 476. Chun does not contest this finding of fact, nor
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does he point to any contrary evidence. 17 Thus, the BLNR’s
finding of fact was not clearly erroneous.
As to the state’s marine waters, the BLNR explicitly
found that “[t]he longline boats do not fish in this twelve-mile
belt.” Another BLNR conclusion of law specifically addressed
waters between the islands, finding that “[t]he longline boats
do not fish in the channels.” On appeal, Chun does not
challenge these conclusions of law. We thus accept the BLNR’s
conclusions that the longline fishing vessels at issue in this
case do not fish within the 12-mile area of the state marine
waters, including the channels between the islands.
Under the current statutory framework, the legislature
delegated to the DLNR the authority to issue CMLs to persons
that take marine life within or outside the State for commercial
purposes. Notwithstanding the undisputed fact that longline
fishing vessels at issue do not fish within the “waters of the
State” under HRS § 189-5, the statute nonetheless allows CMLs to
be issued to a foreign nonimmigrant crewmember on a longline
fishing vessel for marine life caught outside state waters.
17 Chun argues in his Opening Brief that the BLNR’s conclusions of
law were premised on “clear factual errors.” Specifically, Chun argues that
the “BLNR incorrectly concluded the ‘waters of the State’ . . . do not
include waters of the EEZ,” citing to the BLNR’s conclusions of law within
the BLNR’s broader conclusion that “[t]he [l]ongline [b]oats do not [f]ish
‘in the [w]aters of the State.’” In its Answering Brief, the BLNR pointed
out that Chun’s Opening Brief did not dispute the findings of fact that
established where longline fishing vessels actually fish.
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V. CONCLUSION
For the foregoing reasons, the circuit court’s final
judgment filed on July 1, 2019, is affirmed.
DATED: Honolulu, Hawai‘i, August 11, 2022.
Lance D. Collins /s/ Mark E. Recktenwald
Bianca Isaki
for Plaintiff-Appellant /s/ Paula A. Nakayama
Mālama Chun
/s/ Sabrina S. McKenna
William J. Wynhoff
Daniel A. Morris /s/ Michael D. Wilson
for Defendant-Appellee
Board of Land and Natural /s/ John M. Tonaki
Resources, Department of Land
and Natural Resources,
State of Hawai‘i
Geoffrey M. Davis
for Defendant-Appellee
Hawai‘i Longline Association
32