After contemplating the definition of state waters, the Hawaii Supreme Court this month denied a petition that would have banned the state Department of Land and Natural Resources from issuing commercial licenses to longline fishing boats with foreign workers.

On Aug. 11 the state’s high court struck down the petition, first submitted to the state Board of Land and Natural Resources in 2017, ultimately ruling that Hawaii’s longline fishing vessels fish outside state waters and so are beyond the scope of Hawaii laws that prohibit foreign workers from commercial fishing.

The Hawaii Longline Association, which includes the 140 or so longline fishing boats in Hawaii, reported that some 700 foreign workers make up about 90% of the crew members in the state’s longline fishing industry.

The court opinion concluded that Hawaii law allows commercial marine licenses, or CMLs, “to be issued to a foreign nonimmigrant crewmember on a longline fishing vessel for marine life caught outside state waters.”

Malama Chun, a Native Hawaiian fisherman and Maui resident, first petitioned the BLNR in April 2017 after finding a “massive decline in fish stocks” that is being contributed to by “unfair and illegal labor practices” by the state’s longline fishing industry, which nets about $100 million worth of fish every year.

Chun’s petition cited a 2016 investigation by The Associated Press that found that some of the industry’s foreign workers, most from Southeast Asia, were essentially held captive on the boats and lived in “squalor.”

The petition said that state law requires CMLs to fish commercially in state waters and that commercial fishing by people who are not “lawfully admitted” into the country — most of the Hawaii longline fishery’s workforce — is prohibited.

The BLNR denied the petition after concluding that longline fishing vessels don’t fish in state waters. Chun appealed in Circuit Court, where the BLNR’s order was affirmed. Similarly, the Supreme Court’s recent opinion sided with the BLNR.

Despite the unfavorable ruling, attorney Lance Collins, who represented Chun, was encouraged because he said the Supreme Court affirmed that the state Legislature has the power to expand the definition of state waters, which has been a point of contention.

The BLNR had interpreted Hawaii state waters as 3 nautical miles from shore but expanded the law’s jurisdiction to 12 nautical miles while considering Chun’s petition; Chun had unsuccessfully argued that federal waters, which extend 200 miles from shore and where most longline fishing takes place, are included in the law.

“It could go up to 200 miles — it’s up to the Legislature,” Collins said. “The BLNR’s view had been that it’s three miles but they absolutely can’t do anything after 12. The Supreme Court didn’t go along with that.”

Eric Kingma, HLA’s executive director, said the federal government might not allow the state to make a change like that.

“I don’t think the federal government would acknowledge that the state has jurisdiction beyond three miles,” Kingma said. “That matter would be interesting to test in court.”

Collins said the passing of a state law is helping address the labor issues experienced by the foreign workers within the industry as described by the AP investigation in 2016 and reiterated in 2019 by a Georgetown Law Human Rights Institute report.

Act 43, which allows the crew members on a vessel to be covered by a single CML, also requires license holders to file annual reports to the DLNR about all its members.

“Family and advocates have the ability now, using (public) record requests of the DLNR, to track when guys in Hawaii show up and when they leave,” he said.

Kingma said the portrayal of the foreign crew members in Hawaii’s longline fishing industry isn’t representative of what most of the workers experience. He said labor issues haven’t been a problem, and they’re prevented in a fishery that has multiple levels of oversight, including by the federal government.