ho`ohana aku, ho` ōla aku 1 first steps to averting the...

Hoòhana aku, Ho`ōla aku1:

First Steps to Averting the Tragedy of the Commons in Hawaiì’s Nearshore Fisheries

Wayne Tanaka*

I. INTRODUCTION ................................................................................. 236 II. BACKGROUND .................................................................................. 240

A. The Traditional Ancient Hawaiian Treatment and Regulation

of Fisheries ............................................................................... 240 1. Fishing as Necessity, Sport, and Religious Activity.......... 240 2. The Traditional Hawaiian Fisheries Management Regime:

Kapu and Communal Understanding ................................ 243 a. Directed Stewardship Under the Kapu System...........243 b. Collaborative Stewardship Through Informal Shared

Understanding .............................................................244 B. The Western Fisheries Management Philosophy...................... 245

1. The Western Public Trust Doctrine and the Establishment of the Ocean as a Common Resource Belonging to All .... 245

2. The Principle of Ferae Naturae and the Rational Incentive to Exploit ........................................................... 249

3. The Tragic Effect of Western Philosophy Under the Public Trust Doctrine on Traditionally Managed Fisheries.......... 251

C. Western Influence and the Foreboding Fate of Fisheries in

Hawaiì ..................................................................................... 252 1. Changes to Hawaiì’s Social Background......................... 253

a. Commodification of Resources...................................253 b. Abandonment Of the Formal Kapu System................254 c. Dispossession and Takeover of the Land ....................255

2. The Devolution of Fisheries Stewardship ......................... 258

* Wayne Tanaka is a J.D. Candidate at the William S. Richardson School of Law, University of Hawaiì at Mānoa. The author would like to thank Professor D. Kapuaàla Sproat for her encouragement and invaluable assistance in writing and researching this essay. This essay is dedicated to Edward and Ellen Tanaka, and Craig and Soongoo Tanaka. O ka pono ke hana ìa a iho mai na lani. MARY KAWENA PUKUI, `ŌLELO

NOÈAU: HAWAIIAN PROVERBS AND POETICAL SAYINGS 260 (1983).

1 “Use it, keep it alive!” See Group Interview by Kepā Maly with Louis “Buzzy” Agard, Valentine Ako, John Dudoit, Eddie Nāmakani, E. Kāwika Kapahulehua, & Walter Keliìokekai Paulo, Kūpuna (Oct. 27, 2003), in 2 ORAL HISTORY INTERVIEWS: KA HANA

LAWAIÀ A ME NĀ KOÀ KAI ÈWALU 1200, 1225 (2003) [hereinafter Group Interview by Kepā Maly].

236 Asian-Pacific Law & Policy Journal Vol. 10:1

D. Under Western Management, the Tragedy Unfolds.................. 262 III. ANALYSIS ......................................................................................... 266

A. The Current Regulatory Structure is Inadequate...................... 266 B. Paving the Way for a Solution .................................................. 267

1. Convincing Users That a Problem Exists.......................... 269 a. The Stagnating Effects of Uncertainty ........................269 b. Mitigating Uncertainty by Numerous Means..............272

i. Invest in Low Cost User-Oriented Scientific Studies to Gather More Information About the Resources .............................................................273

ii. Focus on the Social Certainty of Future Loss ......275 iii. Help Visualize Future Loss by Focusing on

Current Costs .......................................................277 iv. Open And Maintain Lines of Communication.....278

2. Coordinated Strategy Alternatives Exist ........................... 279 a. What Alternatives? The Problematic Lack of

Knowledge ..................................................................279 b. Getting the Word Out on the Potential for Success.....280

3. Other Users Can Be Counted on to Change Strategies ..... 281 a. Too Many People, Not Enough Enforcement .............282 b. Fixing the Enforcement Process, and Getting Users

Involved.......................................................................284 4. Benefits of Future Coordinated Strategies Will Outweigh

the Costs ............................................................................ 287 a. Too Many People, Too Many Ways to Exploit ...........287 b. Setting a Framework for Collaboration.......................288

IV. CONCLUSION .................................................................................... 290

I. INTRODUCTION

The tragedy of the commons as a food basket is averted by private property, or something formally like it. But the air and waters surrounding us cannot readily be fenced, and so the tragedy of the commons . . . must be prevented by different means . . . .2

Garrett Hardin’s “tragedy of the commons” describes the process by which individual actors “rationally” exploit a common resource, or commons, to the point of collapse.3 The problem stems from both the

2 Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968), available at http://www.sciencemag.org/cgi/reprint/162/3859/1243.pdf.

3 Id.

2008] Tanaka 237

nature of a common resource, and the economic mentality of Western logic.4 First, because a common resource belongs to everyone, all share the cost of each individual’s exploitation of the resource.5 The full benefit of an individual’s appropriation, meanwhile, goes directly to that person.6 Commons appropriators thus maximize their individual exploitation of the commons. 7 Even if demand rises above a sustainable level, “rational” individuals will continue on this course, until the resource is inevitably depleted.8

Ecologists often describe the tragedy of the commons in the context of a fishing area.9 Oceans and rivers typically constitute a type of “commons” under the public trust doctrine,10 which in the Western context reserves the access and use of fisheries for the entire public.11 Overfishing occurs because “each user knows that, even if any particular individual refrains from fishing so intensely, everyone else will continue to fish, and in fact the others might just fish a little bit more.”12 To offset the cost of less available fish, each person thus seeks to maximize their share of the catch.13 Without some form of organized response, depletion and collapse inevitably result.14

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 See Carol Rose, Rethinking Environmental Controls: Management Strategies

for Common Resources, 1991 DUKE L.J. 1, 3 (1991).

10 See Illinois Central R.R Co. v. Illinois, 146 U.S. 387, 452 (1892) (holding that the Western public trust doctrine reserved title to submerged lands for the state “in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties”), 458 (“This follows necessarily from the public character of the property, being held by the whole people for purposes in which the whole people are interested.”).

11 Id. at 452 (under the Western public trust doctrine, the state held title to submerged lands “in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties”); Smith v. Maryland, 59 U.S. 71 (1855) (holding that the public trust doctrine requires oyster beds in public trust waters be open to public use).

12 Rose, supra note 9, at 3-4.

13 Id. at 3.

14 Id. at 5.


In ancient Hawai`i, the tragedy of the commons could have easily led to imminent disaster, given the inherently limited resources of island communities.15 In the context of fisheries, the open ocean environment would have greatly limited the available options for addressing such a problem.16 Cultural values of conservation and sustainable stewardship, communal harvesting practices, and a strictly enforced system of regulatory rules or kapu, nevertheless allowed the ancient Hawaiians to avoid the tragedy of “rational” exploitation.17

Under the sway of Western influence, this traditional philosophy and management regime eventually gave way to Western philosophies and practices.18 The gradual adoption of open access policies, the acknowledgement of economic property interests, and the framing of fisheries as commodities would replace traditional stewardship principles.19 The dispossession of land and fishery rights would likewise prevent Native Hawaiians from managing the resources formerly held in trust for both the gods and future generations.20 Unfortunately, these changes would set the stage for the tragedy of the commons process to occur.21

Thus, by the end of the twentieth century, the level of exploitation of the nearshore “commons,” whether through overfishing, development, or other pressures, had pushed Hawai`i’s nearshore fisheries to the brink of tragedy.22 Despite the state’s constitutional responsibility to conserve its

15 See, e.g., Dorothy E. Schmidt, Postcard From the Reality-Based Universe:

“Wish you were all here!” A Meditation on the Relationship Between Science,

Intellectual Property Law, and the Rights of Indigenous Populations in Plant Genetic

Resources, 38 ENVTL. L. 315, 361 n.295 (2008) (citing various authority on the depletion of resources on Rapanui (Easter Island) and Nauru); Paul Lucas, Gathering Rights, in

NATIVE HAWAIIAN RIGHTS HANDBOOK 223, 225 (Melody MacKenzie ed., 1991) (discussing the intentional depletion of sandalwood in the Hawaiian islands).

16 See Elinor Ostrom, The Rudiments of a Theory of the Origins, Survival, and

Performance of Common-Property Institutions, in MAKING THE COMMONS WORK 293, 295-96 (Daniel W. Bromley ed., 1992) (“For large and amorphous resources, such as ocean fisheries, it is extremely difficult . . . to exclude potential beneficiaries from obtaining benefits from them.”).

17 See, e.g., MARGARET TITCOMB, NATIVE USE OF FISH IN HAWAII 8-13 (2d ed. 1992), available at http://hawaiidigitallibrary.org/elib/cgi-bin/library?c=titcomb&l-en.

18 See, e.g., Group Interview by Kepā Maly, supra note 1, at 1254-57 (discussing the contrast between traditional and the predominant Western mentality regarding fisheries).

19 Id.

20 Melody MacKenzie, Historical Background, in NATIVE HAWAIIAN RIGHTS

HANDBOOK, supra note 15, at 3, 5.

21 See Hardin, supra note 2.

22 See, e.g., S. 24-1187, Reg. Sess., at 1 (2007), available at

2008] Tanaka 239

natural resources for future generations,23 its ability to protect its nearshore fisheries appears to have fallen far short.24 For the first time in centuries, the tragedy of the commons poses a serious and lethal threat to Hawaiì’s nearshore fisheries.25

Fortunately, exhaustive case studies and sociological experiments have resulted in a comprehensive strategy to address the tragedy of the commons scenario.26 According to Elinor Ostrom’s Rudiments of a

Theory of Common-Property Institutions, avoiding tragedy often requires the emergence of an organized group of users to collectively manage the commons.27 For such a group to emerge, a sufficient consensus of users must first realize a set of four factors, dependent on the unique attributes of the specific commons and those that exploit it.28 Unfortunately, Hawaiì has yet to foster the rudimentary social environment to achieve this initial goal. By focusing on the most significant obstacles to establish such an environment, this essay will attempt to outline the most efficient and direct means of averting tragedy.

Part II of this essay will delve into the significance of Hawaiì’s nearshore marine resources. It will discuss the cultural significance of fisheries and other natural resources to the ancient Hawaiians, and outline the communal management practices that prevented the tragedy of the commons in their nearshore fisheries. It will also discuss both the broader

http://www.capitol.hawaii.gov/session2008/commreports/sb663_sd1_sscr265_.pdf (“Hawaiian commercial and recreational marine life stocks are depleted, over-utilized, and in danger of irretrievable exhaustion.”).

23 HAW. CONST. art. XI, § 1 (holding that “the State and its political subdivisions shall conserve and protect Hawaiì’s natural beauty and all natural resource.”).

24 See, e.g., THE AUDITOR, OFFICE OF THE AUDITOR, MANAGEMENT AUDIT OF

THE DIVISION OF CONSERVATION AND RESOURCES ENFORCEMENT (2006), available at

http://www.state.hi.us/auditor/Reports/2006/06-01.pdf (outlining the inability of the state’s resources enforcement agency to enforce regulations).

25 See, e.g., S. Res. 83, 22nd Leg., Reg. Sess. (2004) (finding that “dramatic declines in the size, number, distribution, and quality of a wide variety of important and desirable native marine species and habitats have been observed by many members of Hawaii’s fishing communities.”).

26 See generally, Ostrom, supra note 16.

27 Id. at 297 (addressing the tragedy of the commons in what she terms ‘common pool resources’ or CPRs, Ostrom posits that “if we are to move beyond the work of Hardin, we need to begin to specify the conditions that are conducive to the emergence of coordinated . . . actions by the individual users of the CPR.”).

28 See id. at 304-14; see also Amy Sinden, The Tragedy of the Commons and the

Myth of a Private Property Solution, 78 U. COLO. L. REV. 533, 601-607 (2007); Robin Kundis Craig, Valuing Coastal and Ocean Ecosystem Services: The paradox of scarcity

for marine Resources commodities and the potential role of lifestyle value competition, 22 J. LAND USE & ENVTL. L. 355 (2007).


social changes and specific fisheries management policies that accompanied the Westernization of the islands’ culture and laws. Finally, it will discuss the overexploitation of the nearshore commons that subsequently emerged, and the current state of the islands’ nearshore fisheries.

Part III will examine Ostrom’s four factors, and the necessary conditions for their actualization. Based on these factors, the analysis will pinpoint the most significant obstacles to the collaborative organization of Hawaiì’s nearshore commons’ users. It will suggest potential means to effectuate each factor, and, hopefully, serve as a guide for policy makers, community leaders, and others who have an interest in saving Hawaiì’s nearshore fisheries.

II. BACKGROUND

A. The Traditional Ancient Hawaiian Treatment and Regulation of

Fisheries

Fishing was one of the constant, necessary occupations. Everyone knew how to obtain fish by various techniques. The slave, the commoner, the lesser chiefs, the high chiefs, men, women and children got food from the sea by their own efforts. For some it was a duty, for most it was a pleasure, for the chiefs it was a favourite sport.29

1. Fishing as Necessity, Sport, and Religious Activity

A “constant, necessary occupation,”30 fishing played a significant role in ancient Hawaiian society.31 On the one hand, the relative scarcity of other forms of protein made the procurement of fish and seafood a practical necessity.32 Pre-contact estimates of the population of the Hawaiian Islands range from several hundred thousand to a million or more;33 fish and seafood comprised the major source of protein for this

29 See TITCOMB, supra note 17, at 3.

30 Id.

31 Id. at 5-6.

32 HAWAIIAN FISHING LEGENDS WITH NOTES ON ANCIENT FISHING IMPLEMENTS

AND PRACTICES xi (Dennis Kawarahada ed., Kalamakū Press 1992) [hereinafter HAWAIIAN FISHING LEGENDS] (“While pig, dog, chicken, and wild birds were eaten, and might also be called ià (‘meat’), fish was the main source of protein. Ài was the bland staple, ià the tasty accompaniment that made eating a delight. The Hawaiians ate seafood live, raw, baked, broiled, dried, and fermented. The word òno (‘delicious’; ‘to relish, crave, or savor’) was used to describe the wide variety of seafood that pleased their palates.”). While the text of this essay will not italicize Hawaiian words, direct quotations will retain the stylistic format found in each outside source.

33 See DAVID E. STANNARD, BEFORE THE HORROR 59 (3d ed., Univ. of Haw. Press 1994) (“Every indicator . . . establishes 800,000 as a low to moderate estimate.”).

2008] Tanaka 241

population.34 As such, the extensive knowledge and sophisticated techniques of ancient Hawaiian lawaià35 allowed them to exploit fisheries in a sustainable yet highly productive manner.36

In addition to its basic necessity, fishing also constituted an important social and recreational institution.37 Commoners and chiefs alike enjoyed the sport of fishing.38 The obligation to share one’s catch, which applied even to the chiefs, played a daily socializing role.39 Even the passing of fishing knowledge from generation to generation involved important social and familial networks.40

Finally, the religious significance of the ocean and its resources greatly informed the role fishing played in ancient Hawaiì.41 A sense of

34 See TITCOMB, supra note 17, at 9-10 (discussing how informal bartering and customary sharing of the catch ensured widespread distribution to the entire community).

35 Meaning “fisher” or “to fish.” This and subsequent translations will refer to definitions found in the online compilation of Hawaiian language dictionaries at http://www.wehewehe.org.

36 See JEAN SCOTT MACKELLAR, HAWAII GOES FISHING 16 (1968) “The fisherman or lawaià was a man of position in his village. He knew the stars, the tides and the clouds. He could predict the weather and he knew when the fish would be fat and tasty . . . He made and mended his nets, lashed his hooks with painstaking elegance, and prepared many alluring kinds of bait”); SCOTT CUNNINGHAM, HAWAIIAN RELIGION &

MAGIC 71 (1994) (“A kapu was placed upon catching these fish while they were spawning, to ensure their continuing supply in the future. Particularly rich fishing grounds were similarly protected with year-round kapu to prevent overfishing . . . . Seaweed (seen as fish food) was similarly protected. Specific types of fish were also kapu to catch or to eat during certain months of the year.”).

37 TITCOMB, supra note 17, at 4.

38 See id. (“The chiefs were as fond of ocean fishing as commoners and went fishing as a past time, either alone or with a few companions, or grandly with a large number of retainers.”).

39 Id. (“Division was made according to need, rather than as reward or payment for share in the work of fishing. Thus all were cared for. Anyone assisting in any way had a right to a share. Anyone who came up to the pile of fish and took some, if it were only a child, was not deprived of what he took, even if he had no right to it . . . sharing the catch had one restriction – what was taken was supposed to be for one’s own use.”); HAWAIIAN

FISHING LEGENDS, supra note 32, at xviii-xix (“If the fishing was done for or by an aliì, the fish belonged to him and he had the right to distribute the catch, but he was obligated to do so generously.”).

40 See MACKELLAR, supra note 36, at 15 (“The fisherman . . . was taught by his father who in turn had learned from his father before him the locations of the best fishing grounds.”).

41 See, e.g. CUNNINGHAM, supra note 36, at 26 (“[The Hawaiian gods] Kanaloa and Kane . . . were associated with fish and fish ponds . . . Kanaloa is best known as a god of the sea.”), 53-54 (“Kinolau of various àumakua [physical forms of deities] included . . . sharks . . . eels . . . sea cucumbers . . . turtles . . . squid, octopi, fish.”), 98 (discussing the ritualistic uses of salt water); KUMULIPO: A HAWAIIAN CREATION MYTH 9-


religious responsibility pervaded fishing practices just as in any other aspect of life.42 For example, before a fishing expedition, fishers would observe strict religious rituals to ensure both their safety at sea and a successful catch.43 Upon return, the first fish caught would be sacrificed at a koà (fishing altar) to one of the numerous fish gods or deities.44 Gods and àumakua (ancestral or personal deities) also often took the form of sea creatures, which enjoyed the protection of certain fishers and families.45

This sense of religious responsibility included the role of the people as caretakers of the land and its resources.46 To respect the divine origins of such resources required community principles of conservation and the generous sharing of the harvest.47 As discussed below, these principles guided not only the formal regulatory laws regarding fishing, but also the informal choices made by individual fishers.48

15 (James Kimo Campbell ed., Pueo Press 1978) (1897) (recounting the divine origins of sea creatures during the “Second Era”).

42 See, e.g., Group Interview by Kepā Maly, supra note 1, at 1258-59 (Given the cultural equivalence between the concept of subsistence and responsibility, “[y]ou have Papa-Wākea, Kū-Hina, hānai a ài [subsistence] . . . when we are talking about subsistence kuleana, it’s not just taking, its giving back.”); RICK GAFFNEY AND

ASSOCIATES, DEPT. OF AQUATIC RESOURCES, TECHNICAL REPORT 20-02: EVALUATION OF

THE STATUS OF THE RECREATIONAL FISHERY FOR ULUA IN HAWAIÌ, AND

RECOMMENDATIONS FOR FUTURE MANAGEMENT 3 (2000) (“The “ulu” in ulua means possessed or inspired by a god . . . Culturally and religiously, the ulua was seen as an akua (a god).”).

43 See, e.g., HAWAIIAN FISHING LEGENDS, supra note 32, at 94 n.17 (citing MALO D., HAWAIIAN ANTIQUITIES (N. B. Emerson trans., Moolelo Haw. 2d ed. 1951) (1898)); see also MACKELLAR, supra note 36, at 110 (“To make the club effective, incantations were said over it by a kahuna and then it was charred over a fire. After it had once been given special power, the fisherman took great care that this power should not be destroyed.”).


45 See, e.g., HAWAIIAN FISHING LEGENDS, supra note 32, at 81, 93 n.15.

46 MacKenzie, supra note 20, at 3 (quoting Hearings on the Report of the Native

Hawaiians Study Commission Before the Senate Comm. On Energy and Natural

Resources, 98th Cong., 2d Sess. 104 (1984) (statement of Marion Kelly)) (“It was their belief that their gods had created the land and the sea and everything on the land and in the sea. . . . Because these were created by the gods, they must be cared for.”).

47Id. (“No one must take more than they need, and everything must be

shared.”); see also Aloha Àina: On the Land, in THE SHAPING OF MODERN HAWAIIAN

HISTORY: UNIT V: TODAY AND TOMORROW 112, 117 (Jan Friedson ed., 1980) (“The Hawaiians believed that the àina belonged to the gods who ruled their island world. But the land was entrusted to their care, that they might use it wisely to obtain their needs and not abuse it.”).

48 See, e.g., TITCOMB, supra note 17, at 13.

2008] Tanaka 243

2. The Traditional Hawaiian Fisheries Management Regime: Kapu and Communal Understanding

a. Directed Stewardship Under the Kapu System

The importance of fishing to ancient Hawaiians thus formed the foundation for a remarkable fisheries management structure, designed to prevent the sacrilegious depletion of ocean resources. The most formal means of regulation within this structure involved systems of kapu or religious laws promulgated by the aliì nui (high chief) and his or her appointed aliì (chiefs).49 A channel of divine power, the aliì nui “administered the land and other resources on behalf of the gods.”50 In fulfilling this duty, the aliì nui appointed lesser aliì to supervise and direct the maka`āinana (commoners) in their use of natural resources.51 These aliì thus proclaimed and enforced a kapu system tailored to the local land divisions and fishing areas under their control.52

Significantly, the effectiveness of these stewardship-minded kapu depended in large part on the knowledge of fishers themselves.53 While each kapu system varied from location to location, an oft-quoted example of one such kapu system illustrates how long-term observations of spawning seasons and fish behavior, as well as immediate observations of ecological health, were used to effectuate the larger goals of sustainable stewardship:

Summer was the time when fish were most abundant and therefore the permitted time for inshore fishing . . . . In winter, deep sea fishing was permitted. . . . A tabu for the inshore fishing covered also all the growths in that area, the seaweeds, and shellfish, as well as the fish. When the kahuna had examined the inshore area, and noted the condition of the animal and plant growths, and decided that they were ready for use, that is, that the new growth had had a chance to mature and become established, he so reported to the chief of the area, and the chief ended the tabu.54

49 See http://www.wehewehe.org for translations.

50 MacKenzie, supra note 20, at 4.

51 Id.

52 Alan Murakami, Konohiki Fishing Rights and Marine Resources, in NATIVE

HAWAIIAN RIGHTS HANDBOOK, supra note 15, at 173-74.

53 See, e.g., CUNNINGHAM, supra note 36, at 71 (discussing the use of spawning, gathering, and feeding information in the placement of “ecological” kapu, and how “all understood the importance of these prohibitions”).

54 TITCOMB, supra note 17, at 14. The kapu system described was applied in the


Though religious in authority, the kapu system as a management tool thus depended on the same intimate knowledge and observation of the fisheries that allowed fishers to harvest their catch so productively.55

b. Collaborative Stewardship Through Informal Shared Understanding

While the severe punishment for violating kapu encouraged adherence to these specific laws, the successful management of fisheries in ancient Hawaiì also depended in great part on the voluntary participation of fishers themselves.56 The shared sense of religious responsibility informed this participation to some extent; for “[w]hen a man broke [a] law he expected punishment from the chief’s agent if his act was detected, but punishment from the gods certainly, for no knowledge was hidden from their perception.”57 Folk tales and legends also emphasized the cultural and religious importance of both conservation and reasonable harvesting practices.58 Meanwhile, fishers understood the practical consequence for overfishing:

Fishing grounds were never depleted, for the fishers knew that should all the fish be taken from a special feeding spot (koà) other fish would not move in to replenish the area . . . . [T]he supply was drawn upon carefully. Not only draining it completely was avoided, but also taking so many that the rest of the fish would be alarmed. At the base of this action to conserve was the belief that the gods would have been displeased by greediness or waste.59

With the informed direction of administrative leaders, common values of conservation and religious respect thus enabled ancient

Kaù district on the Big Island. Id.

55 See MACKELLAR, supra note 36, at 15 (“Probably no other people in the world surpassed the ancient Hawaiians in intimate knowledge of the habits of fish . . . Theirs was not a hopeful, haphazard game. They knew where each variety lived, when and what it ate and when it spawned.”).

56 HAWAIIAN FISHING LEGENDS, supra note 32, at xv; see also DAVID MALO,

HAWAIIAN ANTIQUITIES: MOÒLELO HAWAIÌ 248-52 (1898), available at

http://books.google.com/books?hl=en&id=5cjaw4b3HoUC&dq=david+malo&printsec=frontcover&source=web&ots=17LsYHKbPx&sig=mmkDF7dqQ-ElIDsddMVReZALQjg&sa=X&oi=book_result&resnum=6&ct=result#PPA57,M1 (death penalty for violating kapu).


58 See, e.g., HAWAIIAN FISHING LEGENDS, supra note 32, at 81-113; Murakami, supra note 52, at 173 (citing MALO, D., HAWAIIAN ANTIQUITIES: MOOLELO HAWAII. (2d ed. 1951) (1898)).


2008] Tanaka 245

Hawaiians to successfully sustain one of their most culturally significant resources.

B. The Western Fisheries Management Philosophy

The introduction of Western approaches to fisheries management would eventually replace the traditional management system of ancient Hawai`i.60 The endorsement of a public right to fish under the nineteenth century public trust doctrine, as well as the characterization of fishery stocks as ferae naturae,61 largely informed the Western perception of fisheries as a type of commons open to all.62 Combined with a social and economic emphasis on resource exploitation, the Western management philosophy proved conducive to the tragedy of the commons in actual fisheries across the North American continent.63 Unfortunately, these Western concepts also proved incompatible with the sustainable stewardship traditions of ancient Hawaiian society, and their gradual adoption would displace the foundation of its successful management framework.64

1. The Western Public Trust Doctrine and the Establishment of the Ocean as a Common Resource Belonging to All

Developed in Roman law, English common law, and American jurisprudence, the public trust doctrine of the nineteenth century established policies of open access and substantially unchecked exploitation for certain resources, including oceans and shorelines.65 The traditional public trust doctrine restricted the private ownership of these resources in favor of the public’s “beneficial” use.66 The right of any and all citizens to exploit public trust resources, such as through fishing, also

60 See Murakami, supra note 52, at 174-84.

61 See Douglas Britton, Comment: The Privatization of the American Fishery:

Limitations, Recognitions, and the Public Trust 3 OCEAN & COASTAL L.J. 217, 221 (1997) (“Individual ownership of the actual fish was, and still is, limited by the doctrine of ferae naturae.”).

62 See id. at 220-22 (discussing the relevance of common law doctrines to the establishment of private interests in fisheries commons).

63 Donald R. Leal, Community-Run Fisheries: Avoiding the ‘Tragedy of the

Commons’, PERC POL’Y SERIES, Sept. 1996, http://www.perc.org/articles/article652.php (last visited Apr. 30, 2008).

64 See MacKenzie, supra note 20, at 5-17.

65 See Robert Haskell Abrams, Walking the Beach to the Core of Sovereignty:

The historic basis for the public trust doctrine applied in Glass v. Goeckel, 40 U. MICH. J.L. REFORM 861, 871 (2007) (discussing the historic evolution of the public trust doctrine).

66 Id. at 884.


fell under the protection of the doctrine.67 Although theoretically similar to traditional Hawaiian concepts of divine stewardship,68 the Western trust concept would primarily act as a check against exclusive private ownership of trust resources.69 The basic principles of the nineteenth century Western public trust doctrine thus established the ocean and its fisheries as a “common resource” subject to free exploitation, a basic ingredient of the tragedy of the commons.70

The origin of the Western public trust doctrine traces back to Roman law, which classified certain types of land as belonging “to all men: namely, air, running water, the sea . . . . All rivers and ports are also public, and therefore the right of fishing in a harbor or in streams is common to all.”71 This principle sought to maximize the public use and societal benefit of such resources, by limiting “private use . . . when the private use interfered with paramount public rights.”72

The public use principle survived to medieval times, which allowed limited privatization of fisheries and other trust resources, but not to an extent that interfered substantially with the traditional rights of the public.73 This policy relied partly on the proposition that “the wealth of nature was provided by the deity for the benefit of the people . . . resources were entrusted to the King as steward, to benefit the people and the nation.”74 The sovereign’s responsibility to ensure beneficial public use acted to limit the disposition of trust resources.75 As later recognized by

67 Britton, supra note 61, at 217; see also Smith, 59 U.S. at 71, 74-75; In re

Water Use Permit Applications, 94 Haw. 97, 9 P.3d 409 (2000) (The public trust doctrine as “traditionally preserv[ed] public rights of navigation, commerce, and fishing”).

68 Britton, supra note 61, at 221.

69 See, e.g., id. (“As the Supreme Court has stated, in reviewing the common law in England, . . . ‘the common people. . . . have regularly a liberty of fishing in the sea, or creeks . . . as a public common of piscary, and may not, without injury of their right, be restrained of it.’”); In re Water Use Permit Applications, 94 Haw. at 141 (“The public trust has never been understood to safeguard rights of exclusive use for private commercial gain. Such an interpretation, indeed, eviscerates the trust’s basic purpose of reserving the resource for use and access by the general public without preference or restriction.”)


71 Abrams, supra note 65, at 871.

72 Id.

73 Id. at 881 (“Medieval forms of privatization of the res communes did not have the effect of barring concurrent public use . . . [T]he law . . . [allowed] a degree of privatization in the foreshore area as long as the public rights were not too greatly

diminished.” (emphasis added)).

74 Id. at 879-80.

75 Id. at 878.

2008] Tanaka 247

American courts, the sovereign’s ownership of trust lands could not “be alienated, except in those instances . . . [such as] when parcels can be disposed of without detriment to the public interest in the lands and waters remaining.”76 Although reminiscent of the ancient Hawaiian concept of divine stewardship, the Western public trust doctrine traditionally focused not on conservation, but on limiting private ownership of trust resources.77

Throughout the subsequent development of English common law, the public trust doctrine continued to restrict the ability of the sovereign to grant private fishery rights and specifically ensured the public the right to fish.78 The Magna Carta of 1215 formally reestablished fisheries as a common resource reserved for public use.79 Reaffirming the original Roman purposes of the doctrine, English common law went on to reserve for “the common people of England . . . a liberty of fishing in the sea, or creeks, or arms thereof . . . and [who] may not, without injury of their right, be restrained of it.”80

Nineteenth century American jurisprudence, in adopting the English common law, expanded both the scope of the public trust and the generally inalienable public right to exploit fisheries.81 The U.S. Supreme Court expanded the definition of public trust resources to include all navigable waters, a “larger class of waters that extended beyond . . . [the English common law standard] of tidal influence.”82 Federal and state courts also vigorously enforced the public right to fish in these waters.83

76 Illinois Central R.R., 146 U.S. at 456 (“[T]he ownership of the navigable waters of the harbor, and of the lands under them, is a subject of public concern to the whole people of the state.”).

77 Abrams, supra note 65, at 878 (“[In] the Middle Ages of England . . . The law of inalienability was already in place and cited by the Crown, particularly when it was convenient to do so in the effort to regain lands.”).

78 Id. at 882; see also Britton, supra note 61, at 221.

79 Abrams, supra note 65, at 882.

80 Britton, supra note 61, at 221 (quoting Martin v. Waddell, 41 U.S. 367, 412 (1842)).

81 See id. at 250; see also In re Water Use Permit Applications, 94 Haw. at 139 (citing Illinois Central R.R., 146 U.S. at 387) (“[A]s commonly understood, the trust protects public waters and submerged lands against irrevocable transfer to private parties.”).

82 Abrams, supra note 65, at 890; see Illinois Central R.R., 146 U.S. at 435-436 (“[The English “tidal influence” standard] is now repudiated in this country as wholly inapplicable to our condition . . . Some of our rivers are navigable for great distances above the flow of the tide . . . If it is a public, navigable water, on which commerce is carried on between different states or nations, the reason for the jurisdiction is precisely the same.”).

83 See, e.g., King v. Oahu Railway, 11 Haw. 717, 1899 WL 1502, 5 (1899) (“[The sovereign held title to navigable waters] in trust for the people of the state that


Even government-sanctioned grants of public trust lands could not infringe on “certain public rights, among which is the common liberty of taking fish, as well shellfish and floating fish.”84

In some cases, early American jurisprudence did recognize the ability of the State to regulate the public’s use and appropriation of public trust resources.85 The thrust of societal concern, however, remained directed at open access and preserving the public right to exploit.86 The limited conservatory measures that were taken reflected a narrow economic focus on the preservation of food sources.87 Not surprisingly, these measures proved largely reactionary and, in many instances, tragically ineffective.88

they may enjoy the navigation of the waters, carry on in commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private properties.”); Arnold v. Mundy, 6 N.J.L. 1, 9 (1821) (holding that an oyster bed planted by the plaintiff belonged to the public for harvesting purposes); Peck v. Lockwood, 5 Day 22, 1811 WL 159, 5 (Conn. 1811) (“Here the court most expressly recognize the doctrine, that it is a right common to every subject, to enter upon the lands of the plaintiff, to enter upon the lands of the plaintiff, betwixt high and low-water mark, and to take from thence shell-fish.”).

84 Smith, 59 U.S. at 74-75.

85 Michael Bloom and Lucus Ritchie, The Pioneer Spirit and the Public Trust:

The American rule of capture and state ownership of wildlife, 35 ENVTL. L. 673, 696 (2005) (“[I]n the latter half of the nineteenth century, state legislatures began to regulate wildlife taking in order to preserve a food supply decimated by market hunters . . . courts routinely upheld the laws using public trust principles.”); Smith, 59 U.S. at 75 (“[T]he State . . . may regulate the modes of that enjoyment so as to prevent the destruction of the fishery.”).

86 Theorists argue that the expansionist attitude of the United States considerably informed Western public trust doctrine prior to the twentieth century. See Bloom, supra

note 85, at 685 (“To the common settler, the United States at the dawn of the nineteenth century was a seemingly endless landmass with an equally infinite wealth of wildlife and other natural resources. And the American populace was determined to forge a prosperous nation through settling those lands and exploiting those resources.”); Thomas Campbell, The Public Trust, What’s It Worth?, 34 NAT. RESOURCES J. 73, 74 (1994) (“Our developing nation exploited resources for growth. . . . Those resources that were not ‘useful were seen, at best, as nuisances; at worst, as antithetical to growth. Natural resources were seen as ‘wild’ things to be conquered, and in some cases extinguished.”).

87 Bloom, supra note 85, at n.129 (“[E]arly state wildlife regulation ‘was directed at the preservation of a food source; neither recreational, ethical, nor aesthetic values were prominent in legislation until well into [the twentieth] century.”).

88 Id. at 690 (“Nineteenth-century state legislatures, viewing nature as inexhaustibly bountiful, allowed this unrestricted harvest by failing to regulate the taking of wildlife.”), 693 (“The vigorous capture rules fostered by early America’s pioneer spirit resulted in the extinction of many species in the New World and the depletion of populations of many more. State legislators sought to maintain a sustainable food supply for their citizens, but their power to curb the rule of capture remained questionable.”).

2008] Tanaka 249

In contrast to the traditional Hawaiian emphasis on communal stewardship and sustainable conservation of resources, the Western public trust philosophy of the nineteenth century thus emphasized a public right to access and exploit fisheries.

2. The Principle of Ferae Naturae and the Rational Incentive to Exploit

With the public trust doctrine establishing ocean fisheries as a “commons” subject to unrestricted public use, Western concepts of private property and ferae naturae provided the corresponding tragic incentive to exploit such resources.89 In contrast with Native Hawaiian and Native American values, nineteenth century Western principles of resource domination and the exclusive ownership of property promoted the “rational” viewpoint underlying the tragedy of the commons scenario.90 The doctrine of ferae naturae embodied these principles, facilitating the depletion of wildlife populations and fish stocks throughout the nineteenth century.91

Under the nineteenth century doctrine of ferae naturae, individual ownership of fish and other wild animals on public land could only be established by reducing them to personal possession.92 In the definitive case of Pierson v. Post, a hunter who first killed a fox ferae naturae

gained exclusive property rights to the carcass, enforceable even against the hunter who had first given chase to it.93 The underlying policy thus emphasized the personal value of immediately harvesting what one could, encouraging resource exploitation:

When first in right became first in time, speed and efficiency of capture became paramount . . . By rewarding efficient capture, America’s freewheeling wildlife harvest policies promoted investment in capture technology, encouraging hunters to purchase bigger nets, better guns, and more ammunition. Moreover, because taking game in moderation meant compromising revenue, market hunters

89 Id.; see Hardin, supra note 2.


91 See Britton, supra note 61, at 221.

92 Abrams, supra note 65, at 221 (“Individual ownership of the actual fish was, and still is, limited by the doctrine of ferae naturae, under which common property resources, such as fish, are inherently wild and remain res communes until a person reduces it to possession by capture.”); see also Pierson v. Post, 3 Cai. R. 175, 175 (1805) (holding that “[T]o create a title to an animal ferae naturae, occupancy is indispensable.”).

93 Pierson, 3 Cai. R. at 175.


often reduced populations to below carrying capacity.94

As the above quote suggests, inherent in the principles of ferae

naturae is also a disincentive to restrain from exploitation.95 For example, given the exclusive property interests at stake, the nearing depletion of a resource only increases the personal value of capturing what one can; individual restraint seems ever more illogical when “everyone else will continue to fish, and in fact the others might just fish a little bit more.”96

Historically, the non-ownership of uncaptured wildlife and fish ferae naturae has even inhibited early organized attempts to secure legal protection of such resources. 97 Under the common law, recovery for non-economic damage to a public resource requires a claimant to show “a special injury different in kind from that suffered by the general public.”98 In Dunn v. Stone, for example, the destruction of a fishery caused by the defendant’s dam could not support a public nuisance claim by the plaintiff, since the plaintiff could show no greater harm than that suffered by the general public.99 The court there reiterated the principal that “in all cases where the right is of a public nature, the denial of the right to an individual is not actionable, unless the plaintiff charges in his declaration, and proves a special damage.”100 Although special exceptions for pollution damage to commercial fisheries have since emerged,101 the principle in Dunn

94 Bloom, supra note 85, at 690.

95 Rose, supra note 9, at 3.

96 See id. at 3-4.

97 See Campbell, supra note 86, at 87 (reflecting on the difficulty of managing fisheries: “These ocean going resources have traditionally belonged to no one until they were caught, brought into the boat and reduced to exclusive possession . . . The core question that must be addressed is ownership. Resources that are not individually owned should be seen as owned by us all.” (emphasis added)).

98 Oppen v. Aetna Ins. Co, 485 F.2d 252 (9th Cir. 1973) (denying recovery under California civil code and general maritime law for loss of communal navigation rights after an oil spill); see also Arizona Copper Co. v. Gillespie, 230 U.S. 46, 57 (1913) (requiring that a public nuisance action could be upheld where the “appellee alleged a special grievance to himself affecting the enjoyment and value of his property rights as a riparian owner, and as an individual user of the water for purposes of irrigation. This gives him a clear right to apply for preventive relief.”).

99 Dunn v. Stone, 4 N.C. 241, 1815 WL 189, 3 (1815) (“[T]he defendant has the same extent of ownership in [the fish], in virtue of which he might have caught them in his own water, and thus have done an equal injury to the plaintiff’s fishery. Whether their progress thither is obstructed by a mill dam, or by being taken in weirs or nets, the plaintiff loses the benefit of his fishery. But in both cases, the defendant is exercising a legal right, and certainly with as respectable and beneficial a motive in the case of erecting a dam, as in that of catching fish.”).

100 Id.

101 Britton, supra note 61, at 224-26.

2008] Tanaka 251

reflected the legal difficulties in protecting public resources from even substantial damage. In the tragedy of the commons scenario, such difficulties in enforcing protection of the common resource would only fuel the rational mentality to overexploit.102

3. The Tragic Effect of Western Philosophy Under the Public Trust Doctrine on Traditionally Managed Fisheries

The tragic impact of Western natural resource management on Hawai`i’s fisheries could have been foreseen by numerous examples throughout American history.103 Unfortunately, many of these instances involved the disruption of Native American communities’ long-held sustainable stewardship practices.104 The Western management policies of open access and unrestricted exploitation repeatedly induced the tragedy of the commons in these fisheries.105

One well-studied example with ramifications to this day involves Alaska’s sockeye salmon fisheries. A culturally important resource of the Tlingit and Haida Indians, sockeye salmon fisheries were successfully managed by community rules regulating stream ownership and access rights.106 Similar to the informed kapu system of ancient Hawai`i, stewardship of this important yet fragile resource fell under the direction of an elder clan member who “generally possessed superior knowledge about salmon runs, escapement, and fishing technology.”107 The purchase of Alaska by the American government in 1867 led to the end of this management scheme, by replacing the stewardship principals of the native communities with the principles of the Western public trust doctrine and ferae naturae.108 The resulting collapse of the sockeye salmon fisheries forced Alaska finally “to implement extensive regulations to prevent the tragedy of the commons from occurring with native salmon.”109

102 Hardin, supra note 2.

103 See Leal, supra note 63; Bloom, supra note 85, at 691-93 (regarding the destruction of other wildlife stocks: “[The] fate of the passenger pigeon vividly illustrates how early non-regulation of market hunting played out. At the time of America’s discovery, passenger pigeons ranged from the Atlantic Coast westward to the Rocky Mountains; their numbers were estimated in the billions . . . A victim of America’s pro-capture mindset, the last wild passenger pigeon was shot in September of 1908, and the last captive bird died in a Cincinnati zoo on September 1, 1914.”).

104 See Leal, supra note 63.

105 Id.

106 See id.

107 Id.

108 Id. (“By neglecting the authority of Tlingit to establish fishing rights, the U.S. government allowed the tragedy of the commons to occur.”).

109 Id.


Native American tribes in Washington provided another example of how the U.S. inevitably induced the tragedy of the commons. Previously, a system of fisheries rights and intertribal agreements focused on sustainable communal harvesting successfully averted the tragedy of the commons.110 Western settlement, however, led to open access policies that allowed “newcomers to place nets cross the mouth of the Columbia. This quickly depleted salmon runs.”111 Despite the diminution of salmon stocks, the economic incentive to harvest salmon ferae naturae only led to the increased use of “purse seine boats . . . [as] the race to catch salmon moved to open waters.”112 Once again, the replacement of traditional practices with Western policies and exploitative incentives quickly depleted fishery stocks otherwise sustained for centuries.113

Despite these experiences, the historic fisheries management philosophy of the United States continued to persevere throughout the country’s territorial expansion.114 As western influence spread to Hawaiì, so too did the fisheries management philosophy replace the traditional management practices of the islands.

C. Western Influence and the Foreboding Fate of Fisheries in Hawaiì

Western contact brought quick change to the traditional culture and lifestyle of the islands.115 Throughout the nineteenth century, economic, religious, and political influences would supplant the subsistence-based stewardship lifestyle that had previously prevailed.116 With these broader

110 Id.

111 Id.

112 Id.

113 Id.

114 National denial of the impact of such Western management philosophies persevered throughout the nineteenth century. As in the case of the passenger pigeon, “most Americans refused to believe that the once bountiful species was in danger of extinction. Instead, people commonly believed that the birds had taken refuge in South America or Mexico, or had simply ‘gone out to sea.’” Bloom, supra note 85, at 692.

115 See MacKenzie, supra note 20, at 5 (“[C]ontact with the West brought startling changes in both the Hawaiian land tenure system and the Hawaiian social structure.”); see also Melody K. MacKenzie, Self-Determination and Self-Governance, in NATIVE HAWAIIAN RIGHTS HANDBOOK, supra note 15, at 77, 78 (“Native Hawaiians lost both the internal and external rights and control that are paramount to a sovereign nation. Hawaiians lost the right to choose a form of government, to make laws, to oversee their domain, and to provide for their common good.”). Changes to the laws of Hawaiì also resulted as a defensive measure against encroaching Western philosophies, as “review of the early law of the kingdom reveals the specific objective of preserving the rights of native tenants during the transition to a western system of private property.” See In re Water Use Permit Applications, 94 Haw. at 137.

116 See Lucas, supra note 15, at 223-25.

2008] Tanaka 253

changes in place, the Western public trust policy of open access and the incentives implicit in ferae naturae would subsequently establish the basic framework for the tragedy of the commons phenomenon.117

1. Changes to Hawaiì’s Social Background

As discussed previously, the success of traditional Hawaiian fishery management practices stemmed from a religious and cultural philosophy that emphasized sustainable stewardship of the land and its resources.118 Unfortunately, departure from the traditional way of life came quickly after contact with the Western world, in large part due to the commodification of resources, abandonment of traditional religion, and alienation of land and resources essential for Native Hawaiians’ subsistence lifestyle.119 This would pave the way for Western management policies to prevail—the same policies which had led time and again to tragic consequences.120

a. Commodification of Resources

As previously discussed, Native Hawaiians’ reverence for natural resources informed their sustainable subsistence lifestyle.121 With Western contact, the commodification of resources resulted in nearly immediate changes to Hawaiì’s stewardship-based society:

The first major change probably occurred in the early 1800s when Hawaiì’s sandalwood was discovered as an exportable crop to the Orient . . . . [T]he continual demand by resident chiefs for Western products greatly increased over a period of time, resulting in many tenants neglecting their own fields as well as their health . . . . A second major change occurred when sugar, and then pineapple, became Hawaiì’s major cultivated crops. Since large tracts of land were required for these crops, many ahupuaà had to be cleared for this purpose . . . small fields, as well as uncultivated areas rich in plants and herbs used by Hawaiians, were destroyed in the clearing process

117 See id.

118 See TITCOMB, supra note 17, at 12-13.

119 Lucas, supra note 15, at 225.

120 See Leal, supra note 63 (discussing the tragic impacts of Western management philosophy).

121 MacKenzie, supra note 20, at 4 (discussing how traditional subsistence lifestyles “were regulated by a system of rules designed to conserve natural resources,” and how the aliì nui or high chief, through the traditional hierarchical structure, “administered the land and other resources on behalf of the gods”).


. . . As Hawaiì changed from a subsistence to a mercantile economy, tenants abandoned their subsistence lifestyle and traveled to the cities to take up other jobs.122

The burgeoning mercantile economy thus displaced the traditional subsistence lifestyle and undermined the communal perspective underlying stewardship and the divine authority of the aliì.123 Moreover, the acceptance of resource commodification would provide the general economic logic so central to the individual incentive to exploit.124 Finally, the foreign economic interests arising out of resource commodification would pave the way for greater Western influence throughout the islands.125

b. Abandonment Of the Formal Kapu System

Western contact would also undermine and replace the religious beliefs and practices underlying the traditional resource management philosophy of Hawaiì.126 As discussed previously, religious reverence of resources informed much of Hawaiì’s traditional stewardship practices.127 Specific religious kapu provided formal regulation of fisheries and other resources, and personal beliefs prevented individuals from engaging in overexploitation.128 Contact, however, quickly led to the disintegration of traditional religious beliefs.129 The aliì abolished the kapu system in 1819, and protestant missionaries arrived that same year.130 While in 1801 Kamehameha I had sacrificed his own hair to a lava flow in order to

122 Lucas, supra note 15, at 225.

123 TITCOMB, supra note 17, at 12-13.


125 See MacKenzie, supra note 20, at 5-6 (“[W]hen overharvesting collapsed the sandalwood trade and whaling stocks diminished, some Westerners with substantial capital in the islands sought new ways of making money . . . Since investment of capital required a more secure land tenure system, pressure to change the traditional system mounted . . . As their economic interests progressively increased, foreigners exerted even greater pressure . . . aided by diplomatic agents of the government to which they owed allegiance and the frequent visits of foreign gunboats.”).

126 CHARLES F. GALLAGHER, HAWAII AND ITS GODS 24, 29-59 (1975).

127 See Melody MacKenzie & Catherine Kau, Religious Freedom, in NATIVE

HAWAIIAN RIGHTS HANDBOOK, supra note 15, at 229, 231 (“[P]ono, which means duty, responsibility, justice, and righteousness . . . kapu also regulated the conservation of natural resources.”).

128 TITCOMB, supra note 17, at 12-13.

129 GALLAGHER, supra note 126, at 50-54.

130 Id. at 24, 50.

2008] Tanaka 255

appease the goddess Pele,131 the high chiefess Kapiòlani in 1824 climbed to the cauldron of erupting Mt. Halemaùmaù to read biblical passages and eat òhelo berries in defiance of the same goddess.132 In a final act of repudiation of the traditional native religion, the highly influential Queen Kaàhumanu publicly adopted Christianity in 1825.133 Indoctrination by missionaries, defiance of religious kapu by prominent figures, as well as decimation by disease,134 and growing exposure to Western influences, all seriously undermined the religious foundation of traditional communal stewardship.

c. Dispossession and Takeover of the Land

Finally, Western imposition of land ownership concepts provided yet another area where encroaching Western influence would supplant the resource stewardship of traditional Hawaiian society.135 Ancient Hawaiians had no concept of private property, and had considered land as held in trust by the aliì, who “administered the land and other resources on behalf of the gods.”136 Throughout the nineteenth century, Western concepts of private property and individual land ownership gradually took primacy over such beliefs; official recognition of private property interests would thus lead to the alienation of many tenants and chiefs from the majority of the lands they had formerly administered.137

The gradual acceptance of Western land ownership concepts began soon after the abandonment of the formal kapu system.138 In the interest of chiefs and foreigners who wished to pass their land tenure to their heirs, the Law of 1825 allowed all “chiefs to retain their lands upon the death of the king and permit[ted] hereditary succession.”139 This formal acceptance of estate concepts foreshadowed Kamehameha III’s 1839 Declaration of Rights, which conferred individual property rights:

131 HERB KANE, VOYAGERS 128-31 (1991).

132 GALLAGHER, supra note 126, at 53; see also MacKenzie & Kau, supra note 127, at 232 (“The kapu system could not have been been abolished without the support of the priesthood, and indeed, the high preist Hewahewa has been identified as the moving force behind abolishment of the kapu system.”).

133 GALLAGHER, supra note 126, at 53.

134 STANNARD, supra note 33, at 50 (discussing the probably impact of disease on the Hawaiian population).


136 Id.

137 LOUIS CANNELORA, ORIGINS OF HAWAII LAND TITLES AND OF THE RIGHTS OF

NATIVE TENANTS 12 (1974).


139 Id.


some degree of recognition under a paragraph reciting that ‘protection is hereby secured to the persons of all the people, together with their lands . . . and all of their property, and nothing whatever shall be taken from any individual except by express provisions of the laws.’140

Foreign pressure to adopt Western concepts of land ownership increased throughout the early nineteenth century, as foreigners “exerted even greater pressure in order to secure their land holdings. In some instances, foreigners were aided by diplomatic agents . . . and the frequent visit of foreign gunboats.”141 The Constitution of 1840, enacted to “deal with the increasing conflicts between Hawaiians and foreigners over land,” attempted to maintain the traditional concept that land “belonged to the chief and the people, and the King, as the head of the chiefs and people, managed the land.”142 Foreign pressure mounted, however, and by 1845 the Board of Commissioners to Quiet Land Titles

was established to facilitate the transition from the traditional landholding scheme to a more western system, while preserving the traditional concept of joint ownership. Its initial purpose was ‘to investigate and settle all land claims of private individuals, whether native or foreign.’143

Soon thereafter, the Mahele of 1846-48 would represent the final acceptance of private land ownership concepts in Hawaiì.144 Until the Mahele, “the basic difficulty standing in the way of the acquisition of fee simple titles in Hawaii was the fact that the King and the chiefs or konohikis, and in most cases the common people, all held undivided and undefined rights in the same land.”145 The Mahele sought to identify and separate these interests, by dividing all land between the king and his konohiki146 and allowing konohiki and their tenants to subsequently claim

140 CANNELORA, supra note 137, at 5 (citing KUYKENDALL, CONSTITUTIONS OF

THE HAWAIIAN KINGDOM (1940)); see also MacKenzie, supra note 20, at 6-9.


142 Omerad v. Heirs of Kaheananui, 116 Haw. 239, 246-247, 172 P.3d 983, 990-91 (2007) (citations omitted) (“[T]he traditional Hawaiian concept of land ownership was markedly different from Western notions of ownership embodied in the common law.”).

143 Id.

144 CANNELORA, supra note 137, at 12.

145 Id.

146 The term “konohiki,” previously used to refer to the appointed land agent of an ahupuaà, eventually came to refer to the chiefs or aliì themselves. See Territory v.

Bishop Trust Co., 41 Haw. 358, 361-62 (1956).

2008] Tanaka 257

title to lands apportioned for them.147 With the conclusion of the Mahele period, the concept of private land ownership had officially arrived in Hawaiì.148

The Mahele did attempt to protect traditional lifestyles, as title to all lands in Hawaiì remained “subject to rights of native tenants,”149 and the Hawaiian kingdom “expressly reserved its sovereign prerogatives ‘to encourage and even to enforce the usufruct of lands for the common good.’”150 The greater effect of the Mahele, however, resulted in both chiefs and tenants losing access to and control of much of the land in Hawaiì.151 Of the over 4 million acres of land in Hawaiì, native tenants had claimed only 28,600; even those tenants that had established claims “were unable to earn a subsistence living on their small plots . . . native farmers were forced to leave their lands.”152 Meanwhile, chiefs, “already heavily in debt . . . paid their debts to Westerners in land . . . [and] large estates were lost through foreclosure.”153 Government lands “set apart as the lands of the Hawaiian government”154 similarly fell under Western control, and by 1890, “for every four acres belonging to private owners, three were held by Westerners. The relatively small number of Westerners owned over a million acres.”155 The alienation of Native Hawaiians from their lands through private property concepts thus precluded traditional Hawaiian stewardship practices both physically and philosophically.156


148 Omerad, 116 Haw. at 271 (“[A]ll title to land in Hawaiì traces its origins to the Mahele.”).


150 In re Water Use Permit Applications, 94 Haw. at 129.

151 MacKenzie, supra note 20, at 8-9 (“[N]umerous reasons explain why the maka`āinana did not secure more kuleana land. Many Hawaiians did not know of or understand the law; some lacked the money to pay for a survey; others felt that to claim land was an act of betrayal to the chiefs; or they feared reprisal from the chiefs. Additionally, increasing numbers of Hawaiians, unable to support themselves in a cash economy system, had left the land to find jobs in cities. One commentator has suggested that the major reason the maka`āinana received so little land was that kuleana grants were severely limited by the ‘really cultivated’ clause of the [Kuleana] Act . . . Others have suggested that the rapid decrease in the Hawaiian population because of devastating epidemics . . . resulted in fewer claims. Finally, the maka`āinana had a relatively short period of time in which to make their claims.”).

152 Id. at 9.

153 Id. at 10.

154 Id. at 7.

155 Id. at 10.

156 See id. at 8. (“[Although the Kuleana Act of 1850] protected the rights of tenants to gain access to the mountains and the sea and to gather certain materials . . .


By the time of the overthrow and annexation, the impact of Western economic and religious influences, as well as the increasing Western control over the majority of Hawaiì’s land, had clearly paved the way for the Western resource management philosophy to dominate. Although fishery laws continued for a time to reflect traditional notions of directed stewardship, the larger social transformation gave great momentum to the open access principles of the Western public trust doctrine and the incentives to exploit under ferae naturae.157

2. The Devolution of Fisheries Stewardship

As Western influence brought fundamental social changes to Hawaiì, so too did it pave the way for the Western fisheries management philosophy to prevail. From the early formal limitations on the sovereign’s authority to regulate fisheries, imposed to protect the rights of native tenants, to the open access policies of the Hawaiian Organic Act and the adoption of ferae naturae, fisheries management in Hawaiì would devolve from carefully directed sustainable stewardship to open and relatively unrestricted exploitation.158 Subsequently, the twentieth century would see the tragic overexploitation and near depletion of many of the islands’ fisheries.159

The transformation of Hawaiì’s fisheries management practices began as a response to Hawaiì’s rapid adoption of “civilized” property rights concepts.160 Attempting to “preserv[e] the rights of native tenants during the transition to a western system of private property,” the Declaration of 1839 and the subsequent Laws of 1842 expressly acknowledged public and private rights to different classes of fishing grounds.161 These original laws also attempted to preserve the konohikis’

[the] Act did not allow the maka`āinana to exercise other rights, such as the right to grow crops and pasture animals on unoccupied portions of the ahupuaà.”).

157 See, e.g., Murakami, supra note 52, at 174 (comparing the division of fishing grounds with the Mahele of 1848); The King v. Manu, 4 Haw. 409, 1881 WL 7881, 1 (1881) (recognizing exclusive private property interests in captured fish ferae naturae).

158 Murakami, supra note 52, at 172-85 (discussing adoption and decline of the konohiki system and the enduring federal policy of “opening fisheries to all”).

159 See supra notes 22 and 25.

160 See Territory v. Liliuokalani, 14 Haw. 88, 1902 WL 1354, 8 (1902) (concurring opinion) (Fitch, J.) (in the context of land titles in Hawaiì: “[With] the exception of the people of Japan no Asiatic or Malayese race ever exhibited such capacity for rapid assimilation and adoption of western civilization as the Hawaiians.”); MacKenzie, supra note 20, at 6 (“While preserving the traditional land system and stating that land could not be conveyed without the consent of the king, these laws were also designed to appease foreign interests.”).

161 See Murakami, supra note 52, at 175. Other early laws reflected similar concern for native tenants’ rights as Western influence grew throughout the nineteenth

2008] Tanaka 259

traditional stewardship authority, granting them regulatory rights over nearshore areas “apportioned . . . accordingly as they existed by ‘ancient regulation.’”162 In contrast to the Western public trust doctrine and the policy of ferae naturae, these laws restricted access to such fishing grounds and allowed the konohiki to reserve or tax fisheries.163

Western influence, however, would continuously undermine the traditional management practices these early laws sought to protect. The formal guarantees of a public right to fish, along with the limitation of the sovereign’s stewardship authority, already contrasted with the traditional “government of the arbitrary will of the King” which had enabled close stewardship of all resources.164 The 1882 case Hatton v. Piopio provides a revealing glimpse into the subsequent changes brought upon Hawaiì’s fisheries management.165 In Hatton, the Supreme Court of the Republic of Hawaiì narrowly construed the codified rights of a konohiki, holding that a konohiki could not prohibit the commercial sale of a tenant’s catch.166 The court reflected little concern for the konohiki’s stewardship role, noting instead that

[t]he fishing in the open sea off our coasts does not tend materially to lessen the supply unless extraordinary means are used . . . . If the ordinary means are employed in taking

century. See In re Water Use Permit Applications, 94 Haw. at 137 (by reserving certain resources for public use, “the aforementioned Kuleana Act provision ensured tenants’ rights to essential incidents of land beyond their own kuleana, including water”).

162 Bishop v. Mahiko, 35 Haw. 608, 1940 WL 7582, 20 (1940).

163 Murakami, supra note 52, at 174 (citing THURSTON, L. FUNDAMENTAL LAWS

OF HAWAIÌ 21 (1904) (“‘The fishing ground from the coral reef to the sea beach are for the landlords, and for the tenants of their several lands, but not for others’ . . . the law . . . sanctioned the practice of placing a kapu on certain fish and fishing seasons.”). Other early legal treatment of marine resources similarly rejected the strict open access and public right to fish policies of the Western public trust doctrine. See Application of

Kamakana, 58 Haw. 632, 639-40 (1978) (holding that the traditional Western public trust doctrine does not apply to enclosed fishpond areas. “[B]oth inland and shore fishponds were considered to be part of the ahupuaà and within its boundaries . . . a fish pond is treated under our land system in the same manner as are the land areas.”).

164 Thurston v. Bishop, 7 Haw. 421, 428 (1888) (“Under [Kamehameha III] a government, under a constitution and laws, had its birth, superseding a government of the arbitrary will of the King.”); Murakami, supra note 52, at 174 (“This revolutionary 1839 law was the first formal recognition of the people’s fishing rights. Significantly, it was also the first time that the ability of the konohiki to regulate these fishing rights was limited.”).

165 Hatton v. Piopio, 6 Haw. 334 (1882) (holding that tenants’ statutorily allowed use of fisheries included the ability to sell captured fish not specifically reserved by the konohiki).

166 Id. at 337.


fish, the Konohiki’s opportunities to take all the fish he is able to capture are not diminished by whatever fishing the tenants may do.167

The characterization of konohiki interests as personal “opportunities,” rather than as an administrator of communal resources, indicated the diminished role of communal stewardship in the islands.168 The legal challenge itself reflected the diminishing stewardship authority of konohiki themselves, more than a few of whom had no traditional cultural background.169 As Hatton illustrated, in many instances the greater social changes brought to Hawaiì had seriously undermined the traditional management of fisheries.170

Hatton and other case law also reflected the adoption of ferae

naturae principles in Hawaiì, with the accompanying individual incentive to exploit fisheries.171 Heppingstone v. Mammen first held in dicta that the “rule of the common law touching animals ferae naturae . . . govern[s] cases arising within the Kingdom.”172 In King v. Manu, the Hawaiì Supreme Court later recognized and upheld the exclusive property interest in harvested fish, restating the ferae naturae principle that “[a]nimals, whether those living in air, or aquatic, or amphibious, of species not usually domesticated, are subjects of larceny when in the custody, possession, and control of the owner.”173 Hatton again recognized that “fish in the open sea are animals ferae naturae,” and considered it “unreasonable to hold that the tenant must put the excess of fish beyond what he can eat back into the sea to run off again.”174 Holding that tenants had the right to sell captured fish for profit, the court acknowledged once more the economic incentive to harvest fish.175 In contrast to the

167 Id.

168 See MacKenzie, supra note 20, at 9-10 (discussing the diminishing ability of native tenants to conduct traditional subsistence and stewardship practices).

169 See, e.g., id. at 9-10 (discussing the increasing concentration of land ownership by westerners).

170 See MacKenzie, supra note 20, at 8 (where only three decades earlier tenants had felt that to even “claim land was an act of betrayal to the chiefs,” a tenant here had successfully challenged both the stewardship role and authority of the konohiki); see also Hatton, 6 Haw. at 337 (“[I]n ancient times no fish was accustomed to be sold . . . . But in the primitive days of this country there was no trade or commerce and no currency.”).

171 Hatton, 6 Haw. at 337; Manu, 4 Haw. at 409 (holding that the ferae naturae principles applied to wild fishery stocks).

172 Heppingstone v. Mammon, 2 Haw. 707, 1863 WL 2538, 2 (1863).

173 Manu, 4 Haw. at 409.

174 Hatton, 6 Haw. at 337.

175 Id. (holding that it was within the rights of “tenants [to] sell the unreserved

2008] Tanaka 261

traditional doctrine of freely sharing one’s catch, the exclusive property rights legally recognized in these cases reflected the economic benefits of maximum exploitation.176

With the economic incentive to exploit fisheries ferae naturae

firmly in place, annexation and the Hawaiian Organic Act of 1900 dealt a final blow to the traditional management philosophy embodied in the konohiki fishery scheme.177 Passed by Congress to incorporate Hawaiì as a Territory of the United States, the Organic Act repealed “all laws of the Republic of Hawaiì which confer exclusive fishing rights upon any person or persons, and all fisheries in the sea waters of the Territory of Hawaiì . . . shall be free to all citizens of the United States, subject, however, to vested rights . . . .”178 Consistent with the Western public trust doctrine’s policy of uninhibited public access to fisheries, the Organic Act intended to “do away with all fisheries in the sea waters of the Territory belonging to private individuals.”179 Hawaiì courts recognized the shift towards “rendering fisheries in Hawaii, like those on the mainland, free to the public,” and adopted policies favorable to open public use.180 Konohiki could register and retain their “vested” fishery rights, if petitioned for within two years of the passage of the Act; the Attorney

fish which they take”).

176 TITCOMB, supra note 17, at 8 (regarding the apportionment of the catch).

177 Hawaiian Organic Act § 95, 31 Stat. 141 (1900).

178 Id.

179 Kapiolani Estate v. Territory, 18 Haw. 460, 460 (1907). The Supreme Court of the Territory of Hawaiì thus narrowly construed the “vested fishing rights” under § 95 and § 96 of the Hawaiian Organic Act to exclude a claimed fishery within the Hanapepe river. Id.

180 Damon v. Tsutsui, 31 Haw. 678, 692 (1930) (“[Congress was] desirous of rendering fisheries in Hawaii, like those on the mainland, free to the public and substantial progress towards that end would be accomplished by preventing the accrual of any new rights of tenants and at the same time providing for the condemnation of existing or vested rights.”); see also King v. Oahu Railway Co., 11 Haw. 717, 725 (1899) (holding that under the public trust doctrine, the defendant company’s delegated right to condemn property for public use did not extend to the condemnation of public trust waters, to which “[t]he people of Hawaii hold the absolute rights . . . there can be no irrepealable contract in a conveyance of property by a grantor in disregard of a public trust”). Courts and the legislature have similarly continued to enforce the public policy favoring public access to and use of almost all coastal shorelines. See Hawaiì County v. Sotomura, 55 Haw. 176, 182 (1973) (presuming the public boundary on a beach to be the more mauka of either the vegetation or debris line, since “public policy, as interpreted by this court, favors extending to public use and ownership as much of Hawaiì’s shorelines as reasonably possible”); Haw. Rev. Stat. § 115-1 (2008) (“The purpose of this chapter is to guarantee the right of public access to the sea, shorelines, and inland recreational areas, and transit along the shorelines, and to provide for the acquisition of land for the purchase and maintenance of public rights-of-way and public transit corridors.”).


General, however, could still exercise eminent domain powers to condemn such rights.181

In any case, whether through the failure of konohiki to register or through subsequent condemnation by the government, in 1953, less than a hundred konohiki fisheries remained registered.182 While provision for vested konohiki rights still existed under statutory law,183 by statehood Western resource management policies had effectively replaced Hawaiì’s traditional fishery management system.184

D. Under Western Management, the Tragedy Unfolds

Under the influence of Western legal and social philosophies, fisheries management in Hawaiì had shifted from emphasizing communal stewardship and religious reverence to the public right and incentive to maximize exploitation. Not surprisingly, this would lead to the proliferation of destructive practices and the overexploitation of many of Hawaiì’s fisheries.185

The pressure on fisheries from direct harvesting alone illustrates this point. In 1898, 2,000 registered commercial fishers took 6 million pounds of fish; by 1953, the harvested amount increased to almost 19 million pounds, mostly from the nearshore fisheries.186 By annexation, the native island population had been severely diminished,187 and the constant influx of newcomers with little knowledge of the traditional principles

181 Hawaiian Organic Act § 96, 31 Stat. 141 (1900); see Damon v. Territory of

Hawaii, 194 U.S. 154, 159 (1904) (holding that the konohiki’s established right to fishing grounds “within the reef or one mile seaward,” granted under royal patent, could constitute a “vested right” under § 96 of the Hawaiian Organic Act).

182 Murakami, supra note 52, at 177 (“Of a total of 1,200 to 1,500 fisheries . . . as of 1939, only 101 fisheries had been established and registered by some 35 owners. Furthermore, one expert estimates that between 1900 and 1953, the federal and territorial governments condemned or acquired 37 fisheries, while 248 fisheries were not registered and purportedly were lost.”).

183 Haw. Rev. Stat. § 187A-23 (2008) (defining konohiki rights to fisheries) available at http://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0187A/HRS_0187A-0023.htm.

184 See Interview with William Aila, Harbormaster, Waianae Boat Harbor, in Honolulu, Haw. (Feb. 8, 2008) [hereinafter Interview with William Aila]; Interview with Kapahulehua, supra note 1, at 1155, 1176 (discussing the decline in fisheries due to the loss of traditions and subsequent changes in fishing philosophy).

185 See Ostrom, supra note 16, at 312 (“[I]n all of the cases described in these works, the overexploitation of common-pool resources occurred when open access prevailed . . . [such as when] state property was treated as open-access property.”).

186 Gaffney, supra note 42, at 5.

187 Stannard, supra note 33, at 57-58.

2008] Tanaka 263

likewise contributed to the demand on fishery resources.188 Moreover, the introduction of new fishing technology such as “inexpensive monofilament gill nets, SCUBA, spear guns, power boats, [and] sonar fish finders” enabled even small groups of individuals to overharvest nearshore fisheries with little experience or traditional fishing knowledge.189 Driven by the tragic economic rationale of overexploitation, such practices played a significant role in depleting Hawaiì’s fisheries.190

Similarly, economic mentalities and widespread disregard for stewardship principles has led to destructive impacts beyond that of direct harvesting. For example, while addressing the huge drop in commercial fisheries through the latter twentieth century, renowned ichthyologist John Randall noted how

[m]onofilament lay gill nets were introduced in Hawaiì in the 1950s . . . . Traditional gill nets were very valuable and hence carefully used. The expert net maker had to barter with dogs, fish, and kalo for enough painstakingly scraped and shredded olona fiber to make a net. . . . Because modern monofilament gill nets are relatively inexpensive, costing around $100, fishers are more willing to risk the loss of their nets. . . . This has led to nets being set and left unattended . . . . Lay gill nets that are lost, or that the fishers are unable to raise, continue to endlessly kill fish. An entangled and abandoned net can cover and kill an entire coral colony.191

Dr. Randall’s example epitomizes how the tragedy of the commons rationale has led in some cases to an overall disregard for any fish not reduced to an individual’s possession. Because the cost of recovering a net outweighed the cost of a new one, net fishers could “exploit” the commons by allowing it to absorb the impact of an abandoned net. Traditional stewardship principles would make little sense to individuals

188 Gaffney, supra note 42, at 5 (“[In 1898] the population of the islands was about 150,000 residents . . . . By the middle of the century Hawaiì’s population had swelled to roughly half a million residents . . . . By mid- to late-1980’s the population of the islands had reached a million residents.”).

189 Alan Friedlander & Herman Cesar, FISHERIES BENEFITS OF MARINE

MANAGED AREAS IN HAWAIÌ 4 (2004), http://maineeconomics.noaa.gov/reefs/fisheriesandMMAs.pdf.

190 Id.

191 John Randall, Ph.D. et. al., The Case Against Lay Gill Nets, HAWAIÌ FISHING

NEWS, Sept. 2006 at 22.


concerned only with the personal benefits of harvesting fish. Such indirect practices continue to this day, with similarly tragic consequences.192

Indeed, the tragedy of the commons rationale has even led to forms of exploitation wholly unrelated to fishing practices.193 For example, according to newspaper accounts, “over 90 percent of the Island’s natural wetlands—the places where many fish breed—have been sacrificed to agriculture and urban development.”194 A recent sediment spill on the Big Island, indicative of decades of runoff from development and agriculture, illustrated “how development carries risks that continue to be ignored.”195 As a state biologist noted,

It’s been 10 months and the sediment spill looks like it happened yesterday. It’s breathtaking, even hard to believe . . . . Fairly large coral heads, decades old, are dead. The abundance and diversity of organisms encrusting coral are gone. There are some fish and urchins, but the marine environment is nothing like it used to be.196

Other well-documented forms of exploitation include the routine dumping of toxins,197 sewage,198 and even the trampling of reefs by tourists.199 All these practices reflect a basic societal assumption that public ownership entitles individual exploitation regardless of the cost to other users—the rational mentality driving us towards tragedy.200

192 See, e.g., Associated Press, Monk Seal Drowns After Net Entanglement, USA

TODAY, May 30, 2007, available at http://www.usatoday.com/tech/science/2007-05-30-2869608922_x.htm.

193 IRA ROHTER, A GREEN HAWAIÌ: SOURCEBOOK FOR DEVELOPMENT

ALTERNATIVES 21 (1992).

194 Id.

195 Carolyn Lucas, Sediment Killing Coral off Kohala, STEPHENS MEDIA, Aug. 16, 2007 available at http://www.hawaiitribune-herald.com/articles/2007/08/16/local_news/local06.txt.

196 Id.

197 ROHTER, supra note 193, at 19 (“[O]ysters harvested in Kaneòhe Bay contain the highest US levels of two toxic pesticides, dieldrin and chlordane.”).

198 Id. at 17 (“In the last five years the City and County of Honolulu has dumped nearly a billion gallons of sewage into Oàhu’s bays . . . West Maui’s offshore waters are being choked by a miles-long algae bloom, fed by leaking sewage effluent.”).

199 See Denise Antolini, Marine Reserves in Hawaiì: A new call for community

stewardship, NAT. RESOURCES AND ENV’T., Summer 2004, at 36, 38 (2004) (describing how tourist activity at the Hanauma Bay marine reserve “result[ed] in an MLCD that was being ‘loved to death’”).

200 Hardin, supra note 2.

2008] Tanaka 265

Today, despite the difficulties in obtaining statistical data,201 anecdotal evidence and comparative studies strongly indicate that these various means of exploitation have led to the near depletion of fisheries.202 Even forty years ago, recreational fishers took note that “the best reef fishes are declining . . . the fish of Hawaii’s shore waters are like a bank account in which more is being withdrawn each year than is being accumulated in interest.”203 Since then, the fishing and environmental community have continued to notice the steady decline of most sought-after species.204 Commercial catches of nearshore species have likewise fallen drastically,205 and imports supply the local demand for many species of nearshore food fish.206 Legislative measures continue to seek means of addressing nearly unanimous community concern for the health of nearshore fisheries, though few pass.207 Today, tragedy for Hawaiì’s fisheries, if not already here, may be just around the corner.

201 See Nicole Bartlett, Recreational Fisheries, HAWAIÌ FISHING NEWS, Oct. 2006 at 26, 26 (reflecting on the Hawaii Marine Recreational Fishing Survey: “[Hawaiì’s] challenges in running a field survey are in many ways greater than most states.”).

202 Brooke Kumabe, Protecting Hawaiì’s Fisheries: Creating an effective

regulatory scheme to sustain Hawaiì’s fish stocks, 29 U. HAW. L. REV. 243, 248 (2006).

203 MACKELLAR, supra note 36, at 151.

204 See, e.g., Bruce Anderson, Ph.D., et. al., Hawaiì’s Òìo: Past, Present, and

Future, HAWAIÌ FISHING NEWS May 2007 at 6, 6 (noting a commercial catch report drop from 18,000 pounds to 581 pounds from 1971-2002. “[A]necdotal reports from recreational fishers also support the decline in òìo populations.”); Louis “Buzzy” Agard, Testimony, HAWAIÌ FISHING NEWS September 2006 at 26, 27 (“I have been fishing in Hawaiì for more than 60 years. I remember when there were dense schools of fish in Hawaiì—so many fish it was unbelievable. But I can tell you from experience, times have changed.”).

205 Kumabe, supra note 202, at 248 (“[A] local newspaper reported in 2003 that between 1955 and 2002, commercial àmaàma (mullet) catch decreased by ninety-one percent, òìo (bonefish) catch decreased eighty-eight percent, and ulua and papio (jack fish) catch decreased by sixty-seven percent.”). Though again the relevance of these figures may depend on market forces such as the higher availability and price of pelagic species as well as possible underreporting due to the illegality or political pressure against nearshore mass-harvesting methods, this author notes a general corroboration of this decline with his own and the unanimous related experiences of “old-timers” familiar with the nearshore recreational fisheries. See KA HANA LAWAIÀ, supra note 1.

206 See ROHTER, supra note 193, at 21.

207 See, e.g., H.B. 3330, 24th Leg., Reg. Sess. (Haw. 2008) (a bill to establish a “combined bag limit of twenty fish per person per day of ornamental fish”) available at http://www.capitol.hawaii.gov/session2008/Bills/HB3330_.htm.


III. ANALYSIS

A. The Current Regulatory Structure is Inadequate

The need for better management of Hawaiì’s nearshore fisheries has become widely apparent.208 The Department of Land and Natural Resources (“DLNR”), assigned with the responsibility of managing Hawaiì’s natural resources,209 recently received severe criticism of its capacity to sufficiently protect the fisheries.210 In response to a stinging 2006 state audit of DLNR’s enforcement branch, then-DLNR director Peter Young acknowledged that the problems found in the audit had “been going on year after year after year.”211 In addition to ineffective enforcement, DLNR has cited other management-crippling factors including: inadequate funding, lack of information, and the degradation of nearshore habitats.212 Attempts to supplement DLNR’s management with official and ad hoc community-based programs,213 federally funded outreach projects,214 and legislative reform,215 have not yet overcome DLNR’s regulatory shortcomings or dissuaded fears that the ocean resources have been declining in health. 216 Tragedy of the commons analysis, however, reveals that certain priorities could be used to most efficiently implement successful management strategies for the nearshore commons.

208 See, e.g., S. Res. 83, 22nd Leg., Reg. Sess. (2004).

209 Haw. Rev. Stat. § 190-3 (2007) (“[The DLNR] adopt rules governing the taking or conservation of fish, crustacean . . . or other marine life as it determines will further the state policy of conserving, supplementing and increasing the State’s marine resources.”).

210 Derrick DePledge, DLNR Ineffective, Audit Says, HONOLULU ADVERTISER, Jan. 6, 2006, available at

http://the.honoluluadvertiser.com/article/2006/Jan/06/ln/FP601060360.html.

211 Id.

212 Kumabe, supra note 202, at 255 (citing DWAYNE MEADOWS, ET AL., HAWAIÌ

STATEWIDE AQUATIC WILDLIFE CONSERVATION STRATEGY (2005)).

213 Brian Funai, Lawaià Splashback, HAWAIÌ FISHING NEWS, May 2006, at 32 (“Clubs used to provide much of the organizational framework that disseminated information and rallied people to address specific issues.”).

214 Nicole Bartlett, Recreational Stakeholders Meet, HAWAIÌ FISHING NEWS, Dec. 2006, at 28, 28.

215 See Antolini, supra note 199, at 41.

216 Shannon Crownover, Statewide Survey: Hawaiì’s Attitudes on the Ocean

and Lay Gillnet Restrictions, HAWAIÌ FISHING NEWS, Sept. 2006, at 26, 26 (2006) (a poll of 1,022 residents showed that sixty-five percent felt that ocean conditions had worsened over the past few years).

2008] Tanaka 267

B. Paving the Way for a Solution

Distinguished researcher Elinor Ostrom, synthesizing years of both her own research and that of other social scientists, has developed a set of factors that have allowed modern communities to overcome the tragedy of the commons phenomenon.217 Her analysis focuses on common-pool resources, or CPRs, defined as “natural or man-made resources sufficiently large that it is costly to exclude users from obtaining subtractable resource-units . . . such as a fishery.”218 Despite the vulnerability of CPRs to the tragedy of the commons phenomenon, she observes that “operational” decision-making arrangements can give rise to “successful indigenous, resource-management regimes.”219 These regimes result from the formation of “appropriator organizations,” or AOs, made up of “the set of individuals who withdraw resource-units from a CPR.”220 Noting the importance of “coordinated, rather than independent, actions by the individual users of a [common resource],”221 she outlines the common elements necessary for an AO to emerge:

Individuals will tend to switch from independent strategies for exploiting a CPR to more costly, coordinated strategies when they share a common understanding that:

1. Continuance of their independent strategies will seriously harm an important resource for their survival.

2. Coordinated strategies exist that effectively reduce the risk of serious harm to the CPR

3. Most of the other appropriators from the CPR can be counted on to change strategies if they promise to do so

4. The cost of decision making about future coordinated strategies is less than the benefits to be derived from the adoption of coordinated strategies222

217 Ostrom, supra note 16, at 294 (describing the involvement of “anthropologists, biologists, economists, ecologists, political scientists, sociologists, and members of other disciplines” in the research summarized by her study).

218 Id. at 296.

219 Id. at 294.

220 Id. at 297.

221 Id.

222 Id. at 301.


According to Ostrom’s research, the satisfaction of all four factors gives rise to the coordinated, communal thinking necessary for the organization of resource appropriators.223 Assuming that Ostrom is correct in that the most successful approaches to resolving the tragedy and protecting the commons involves a coordinated community strategy by resource users,224 these factors should comprise the first steps towards a solution.225

The following analysis examines each factor, applies them to the situation in Hawai`i, and suggests ways to address and remove barriers to their achievement. The potential collection of resource users involved in these strategies includes all those that directly and legally appropriate resources from the nearshore environment—in other words, fishers and others who directly exploit Hawai`i’s CPR fisheries.226

223 Id. at 300 (“AOs do not emerge unless the perceived benefits of organization exceed the perceived cost of organization.”).

224 Other researchers agree that reliance on users to organize and manage the commons may be the only effective way to begin addressing the tragedy of the commons issue. See Barton H. Thompson, Tragically Difficult: The obstacles to governing the

commons, 30 ENVTL. L. 241, 267 (2000) (“A problem at the very first outset is figuring out how to change resource users’ environmental views. Psychologists simply do not know enough about the processes by which we form environmental norms to offer useful advice on how to change them. What psychologists do know is that changes in norms, if they occur, are most likely to come from within the communities of resource users, not from the outside.”); James Krier, The Tragedy of the Commons, Part Two, 15 HARV. J.L. & PUB. POL’Y 325, 337-38 (1992) (suggesting the importance of studying how users organize for collective action, since “an inability to organize, or coordinate, is the problem to begin with”).

225 See Ostrom, supra note 16, at 298-300 (discussing how the four factors address the “emergence” of an AO), 304-310 (discussing the survivability and success of an AO once users organize). Other researchers stress that the initial problems of coordination must be addressed before any user-based management model can succeed. See Krier, supra note 222, at 341 (describing how other researchers neglect to “address the problem of coordination” by advocating free-market models of environmental management, since “they don’t tell us why the constructive instances happened, or how to avoid the counterproductive ones”); Stephen M. Nickelsburg, Mere Volunteers? The

promise and limits of community-based environmental protection, 84 VA. L. REV. 1371, 1379 (1998) (“[Ostrom’s previous work] further unpacks the governance problem by separating CPR management efforts into a hierarchy of ‘first-order,’ or ‘operational’ actions, ‘second-order,’ or ‘collective’ actions,’ and ‘third-order,’ or constitutional actions. Operational rules define the day-to-day choices of individuals, while collective-choice rules are formulated by groups of individuals who have achieved some level of organization.”).

226 See Ostrom, supra note 16, at 297 (defining “appropriators”), 302 (describing the requirement that users must place a “high value on the CPR itself in terms of heir own economic and social survival”), 310 (discussing the importance of matching the membership of an AO with appropriators). The more congruent and cultural interests of such users may allow them to more efficiently confront large-scale indirect exploiters such as developers, polluters, etc. See also Fikret Berkes, Success and Failure in Marine

2008] Tanaka 269

1. Convincing Users That a Problem Exists

Ostrom’s first factor involves resource users’ realization that their independent actions will inevitably harm the fisheries and nearshore resources they consider socially or economically important. That factor requires both that individuals “recognize . . . that demands are close to exceeding the yield,” and that “the users must also place a high value on the [commons] itself in terms of their own economic and social survival.”227

a. The Stagnating Effects of Uncertainty

The problem in realizing this factor in Hawai`i today involves the sociological and psychological effects of uncertainty.228 Ecological resource management inevitably involves some uncertainty, as “the complexity of the relationships within and among ecological and economic systems guarantees that [resource users] will not be perfectly informed about the impacts of prospective actions.”229 Such uncertainty, unfortunately, results in various psychological phenomena that prevent users’ realization of an impending tragedy.230

For example, psychologists and researchers have noted that scientific and social uncertainty in a commons dilemma often results in “tremendous wishful thinking” by resource users.231 Instead of acknowledging that a problem exists, users assume the problem away, and

Coastal Fisheries of Turkey, in MAKING THE COMMONS WORK, supra note 16, at 161, 173 (“[Members of the Tasucu Fishing Cooperative] confronted trawlers that operated (illegally) . . . fought a local pulp and paper mill over pollution, and sought more effective governmental enforcement of the ban on night fishing with scuba gear.”).

227 Ostrom, supra note 16, at 301-02.

228 See, e.g., id. at 301 (“Users need relatively good information about the amount of yield or reliable and sensitive indicators about the condition of the CPR.”); Nickelsburg, supra note 225, at 1390.

229 Nickelsburg, supra note 225, at 1390; see also Thompson, supra note 224, at 272 (“Uncertainty will inevitably plague even relatively exhaustive common research . . . Uncertainty is inherent in environmental science.”).

230 See, e.g., Nickelsburg, supra note 225, at 1390 (“Uncertainty can drive outcomes to the status quo. Under uncertain conditions judgments of costs and benefits are subjective rather than objective, and differences . . . can hinder agreement on concrete action. . . . Where parties make different assessments, they may be vulnerable to accusations of strategic behavior, or may in fact communicate their assessments in a strategic manner. The resulting loss of credibility again increases the likelihood of bargaining failure.”).

231 Thompson, supra note 224, at 246 (“[Scientific simulations] duplicate this phenomenon. As uncertainty increases regarding the exact size of a pool of fish, participants in fishery simulations increasingly overestimate the likely number of fish and boost their harvesting accordingly.”).


instead focus on the costs of any additional management.232 As a result, “the people with the most to lose if the commons is destroyed — the resource users themselves — often combine together to oppose proposed solutions.”233

In addition to the problems of unwarranted optimism, uncertainty also often leads to a “halo effect” in which

[t]he scientific and social uncertainties, when combined . . . permit resource users to indulge in what some psychologists have called ‘self-enhancing attributional biases’ . . . . When the user of a resource believes that there is a human-based problem at all, the user blames the source of the problem on someone else. New England fishers of blue fin tuna blame the decline in tuna stocks on long line fishers in the Gulf of Mexico, who blame the problem on Mediterranean fishers catching the blue fin tuna when the fish cross the Atlantic, who blame the problem back on the fishers in New England.234

Tragically, the self-serving rationale that underlies this psychological phenomenon can result in even further uncertainty, as accusations of bias discredit ecological assessments of different users:

As parties make different assessments, they may be vulnerable to accusations of strategic behavior, or may in fact communicate their assessments in a strategic manner. The resulting loss of credibility again increases the likelihood of bargaining failure.235

Thus, the psychological effects of uncertainty inhibit the realization of Ostrom’s first factor, by both preventing users from realizing any potential problem and by allowing them to excuse their “individual strategies” by blaming other sources of exploitation.

232 Id. at 246.

233 Id.

234 Id. at 260.

235 Nickelsburg, supra note 225, at 1389-90. The difference in stakeholders’ valuation of the status quo also leads to such conflict; for example, “different groups will have very different outside options. For businesses and property owners, who individually may stand to give up the most in a conservation regime, the status quo is an attractive and eminently credible threat point.” Id. See also Thompson, supra note 224, at 272 (“Moreover, resource users pick and choose information from scientific studies to reaffirm their existing belief that their resource is not threatened . . . ‘biased assimilation’ may similarly undermine efforts to convince the resource users of threats to their resource.”).

2008] Tanaka 271

Debates regarding better protection of Hawaiì’s nearshore commons verify this phenomenon. For example, uncertainty about scientific data concerning the health of fisheries has often led to the argument that no threat exist whatsoever.236 Uncertainty about the effectiveness of Marine Protected Areas (“MPAs”) have likewise served as a focal point for some fishers vehemently opposed to any such restriction on their “right to fish.”237

Such uncertainty has also led to the “halo effect” as Hawaiì’s fishers focus on mismanagement and other exploitative practices instead of the necessity of communal action. Ben Wong, host of local fishing shows “Let’s Go Fishing” and “Hawaiì Goes Fishing,” illustrated this point with his recent submission to Hawaiì Fishing News:

The DLNR appears to find it easier to permanently shut down access to those areas they’ve been accused of mismanaging by failing to use their most important management tool: regulation enforcement. . . . Land and ocean management decisions in these Hawaiian islands sometimes don’t provide for an improvement in the quality of life for Hawaiì’s own residents.238

While such an argument may have intuitive merit, it does not contribute to the mindset that each user’s individual exploitation contributes to the decline of the commons’ health. Similar accusations of bias have likewise resulted in conflicting assessments over proposed solutions.239 Such perspectives problematically focus on the exploitative practices of other fishers, instead of on the necessary consensus for community action.240

236 Antolini, supra note 199, at 42. (“Tony Costas, a part-time commercial fisher and spokesperson for the [Hawaiì Nearshore Fishers] . . . challenged the premise that MPAs were needed at all, claiming that there was no evidence that Hawaiì’s fisheries were at risk.”).

237 Id. (“[Costas] questioned whether MPAs work at all, characterizing the scientific evidence as ‘hotly debated’.”); see also Friedlander & Cesar, supra note 189, at 2 (“[T]here was, and still is, a great divergence of views between the Working Group and fishers on whether there is any need for additional protection and, if so, how to achieve healthier fish populations and marine ecosystems.”).

238 Ben Wong, Letter, HAWAIÌ FISHING NEWS, Oct. 2006, at 28-29.

239 One fisherman voiced that House Bills 1848 and 1578 would “cripple the DLNR so much that this department would no longer be able to manage ocean resource at all.” Another fisherman observed a “chance to at least require the state to use scientific data when creating MPAs or other conservation policy . . . . This is our chance to at least have the laws based on sound scientific evidence instead of letting Ms. Tree Hugger decide for us.” Louie the Fish, About Two Really Bad Bills, HAWAIÌ FISHING NEWS, Mar. 2007, at 24.

240 See Funai, supra note 213, at 33 (“Whether you are a pole-and-line angler, a


In some cases, uncertainty arguments and conflict can serve important roles in implementing effective management strategies.241 Ostrom explains that “conflict can be an important feedback mechanism for the participants in an AO . . . . If conflict is suppressed, key information about the effects of past actions is lost.”242 The stagnation of too much conflict, however, can likewise result in the loss of “valuable resources [which] are spent in potentially harmful disputes.” As William Aila, Waianae Boat Harbormaster and fishing activist describes, “I sense in our community a growing polarization of philosophies, divided into two camps, take and no take. It doesn’t have to be that way! There are many tools in the fishery manager’s tool box.”243

b. Mitigating Uncertainty by Numerous Means

The solution to the communal realization issue requires some resolution of the uncertainty regarding both the health of the nearshore commons, and the need for individual action to prevent overexploitation.244 For example, Thompson describes the psychological shift in behavioral choices that occurs by “increasing the perceived certainty of future losses”:245

While resource users are likely to risk large, but uncertain future losses in order to avoid current costs, the temporal dynamic changes if resource users become convinced that the future loss is certain. Increasing the perceived certainty of future losses . . . may dramatically increase resource users willingness to sacrifice current income to avoid future losses.246

Fortunately, many fishers appear to agree that nearshore fisheries have fallen into drastic decline over the past few decades, and that fishing practices are partly to blame.247 Moreover, statistical survey data suggests

netter, diver or gatherer . . . . Fishers need to see beyond their disagreements.”).


242 Id. at 312.

243 William Aila, Mail Buoy, HAWAI`I FISHING NEWS, May 2006, at 37.


245 Thompson, supra note 224, at 277.

246 Id.

247 See, e.g., Antolini, supra note 199, at 37 (“Some kūpuna (Hawaiian elders) who remember the plentiful big fish caught in their younger days view the issue through the eyes of their grandchildren.”); Posting of Fishyfishy, to hanapaa.com forum Topic: No Mo Fish (June 12, 2006) (“Point to this story, anybody planning to come to Maui on the Superferry, don’t get your hopes up too high, unless you have a boat or Kayak, it aint that great. . . . in the past 6 years only, we been wiped out by netters, night commercial scuba

2008] Tanaka 273

that Hawaiì has an unusually large number of nearshore resource users with a high level of social attachment to the ocean resources.248 Reducing the effects of uncertainty in the following ways may help build momentum among these individuals, and enable the larger community to realize Ostrom’s first factor.

i. Invest in Low Cost User-Oriented Scientific Studies to Gather More Information About the Resources

Despite the inherent uncertainty in any scientific study, increasing scientific knowledge of fisheries and the impact of users’ collective exploitative practices will directly decrease the uncertainty arguments discussed above. While acknowledging the inevitability of some degree of uncertainty, “we cannot give up the effort to convince resource users that future catastrophe is certain enough to justify solving commons dilemmas. Each new scientific study makes it harder for resource users to ignore reality and thus brings us closer to a solution.”249 Given the divisive conflicts already present in the fishing community, any such scientific effort will require objectivity.250 As Thompson explains, providing an objective forum for interpretation will ensure that “users cannot downplay scientific findings . . . Governmental agencies cannot play this role, for their interpretation . . . is quickly written off as driven by the agencies’ agendas.”251

Investing in semi-independent, long-term data collection should thus mitigate the uncertainty regarding the declining health of Hawaiì’s nearshore fisheries and the impact of total user exploitation. Fortunately, recreational and commercial users of the nearshore fisheries have demonstrated enthusiasm in participating in such data collection efforts. Programs such as the Department of Aquatic Resource’s (“DAR’s”) `Ōìo Tagging Project252 and Pāpio/Ulua Tagging Project253 have helped to spearing and aquarium collecting.”); Posting of Portuguesepoint to hanapaa.com forum Topic: F**kin lay netters (May 28, 2007) (“So sad to see that. No wonder south shore don’t got fish.”).

248 See Nicole Bartlett, Recreational Fisheries, HAWAIÌ FISHING NEWS, Oct. 2006, at 26 (“Hawaiì’s estimated recreational catch ranks fourth in the nation (excluding Alaska and Texas), behind only Florida, Louisiana, and North Carolina. Per capita, Hawaiì ranks number one.”).


250 Id. at 273

251 Id.

252 See Bruce Anderson, Ph.D., et. al., Hawaiì’s ‘Oìo: Past, Present, and

Future, HAWAIÌ FISHING NEWS, May 2007 at 6, 8 (“The specific objectives were to determine the size and distribution of bonefish species on the Island of Oàhu, to determine movement patterns, and to document bonefish growth rates in their natural environment.”).


incorporate the efforts of over a thousand fishers in what would otherwise be a prohibitively expensive data collection process.254 The participation of fishers in such programs would likewise help to foster some sense of objectivity, and model the future objective of user-based AOs. The availability of federal funds for such data collection projects might further lower research costs.255

Focusing research on non-fishing impacts may also help mitigate the effects of uncertainty.256 Although opponents may claim such studies are duplicative and unnecessary,257 and while the focus on non-fishing factors might contribute to the “halo effect” among fishers, the benefits of these studies may well outweigh such concerns.

For example, greater understanding of the impact of private development and other indirect forms of exploitation may shed light on the depth of the commons problem.258 Such studies may guide future protective actions against appropriate entities (and reduce their uncertainty arguments), particularly given the State’s unique public trust duty to

253 See Clay Tam, Ulua Tagging Project Update, HAWAIÌ FISHING NEWS, May 2006, at 6, 8 (“[M]ore than 1,700 anglers involved in our project [came] from many different backgrounds and walks of life . . . . So far the Ulua Tagging Project has been successful in opening the lines of communications with fishers through outreach and education activities . . . . The project has shown the willingness of fishers to conserve our resources as well as work with a government agency to understand our resources.”).

254 See Written Testimony from Laura Thielen, Chairperson, Board of Land and Natural Resources, to House Comm. on Finance, on H.B. 2687 (Relating to Aquatic Resources) (Feb. 22, 2008) available at http://www.capitol.hawaii.gov/session2008/Testimony/HB2687_HD1_FIN_02-22-08_6_.pdf (attesting to difficulties of agency review of effectiveness of fishing regulations on fish stocks).

255 See Nicole Bartlett, Recreational Stakeholders Meet, HAWAIÌ FISHING NEWS, Dec. 2006, at 28 (describing availability of federal NOAA grants for “expansion of existing tagging projects and introduction of new tagging programs for additional species [and] . . . . [e]xpansion of existing recreational data collection efforts”).

256 See H.B. 3391, 24th Leg., Reg. Sess. (Haw. 2008) (a bill directing the DLNR to assess the impacts of development, shore-based activities, and non-fishing activities on aquatic ecosystems) available at http://www.capitol.hawaii.gov/session2008/Bills/HB3391_.htm.

257 See Written Testimony from Laura Thielen, Chairperson, Board of Land and Natural Resources, to House Comm. on Env’t and Envtl. Protection, on H.B. 3391 (Relating to Aquatic Resources) (Feb. 8, 2008) available at http://capitol.hawaii.gov/session2008/Testimony/HB3391_WLH_02-08-08_.pdf.

258 See, e.g., ROHTER, supra note 193, at 21 (“[T]he likely culprits [of Hawaiì’s declining fisheries] are overfishing, pollution . . . and especially from the loss of natural shoreline areas to ‘development.’ Since 1900 more than 90 percent of the Islands’ natural wetlands – the places where many fish breed – have been sacrificed to agriculture and urban development.”).

2008] Tanaka 275

protect and “recogniz[e] enduring public rights in trust resources separate from, and superior to, the prevailing private interests.”259 Indeed, community groups have already demonstrated effective legislative action and litigation to protect against indirect exploiters of nearshore resources.260

As a final note, objective government acknowledgement of non-fishing impacts may also increase nearshore users’ deference to the State’s regulatory authority.261 Supplemented again by the availability of federal grants, scientific studies on non-fishing impacts should also provide a cost-effective way to mitigate the obstacles of uncertainty. 262

ii. Focus on the Social Certainty of Future Loss

In addition to increasing scientific certainty regarding the health of the nearshore commons, increasing the social certainty of loss may reduce the overall perception of uncertainty and its accompanying deleterious

259 See In re Water Use Permit Applications, 94 Haw. at 138 (emphasis added). Thus the Supreme Court held that the lack of “more conclusive scientific studies” did not preclude the State Water Commission from implementing protective interim in-stream flow standards for public trust waters. Id. at 148. Despite the uncertainties inherent in any such scientific study, the state’s constitutional “duty of protection” of natural resources should allow or, “in situations involving substantial conflict,” compel it to take similar protective measures. See id.; HAW. CONST. art. XI, § 1 (“[T]he State and its political subdivisions shall conserve and protect Hawaiì’s natural beauty and all natural resource.”).

260 See, e.g., Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (2006) (holding that the County of Hawaiì and the Department of Health had affirmative duties under the public trust doctrine to protect coastal waters from storm water pollution after cultural heritage group brought injunctive action); Citizens for the Protection of the North Kohala Coastline v. County of Hawaiì, 91 Haw. 94, 979 P.2d 1120 (1999) (holding that citizens’ group had standing to sue for injunctive relief requiring developer to conduct an Environmental Assessment under Haw. Rev. Stat. § 343 for project involving state land); Funai, supra note 213, at 32 (“The group called on the state to address their concerns about questionable netting practices that were taking place in Kahuku during the annual moi run.”). State-backed action against substantial indirect exploiters, pursuant to its constitutional duties to conserve resources, should also receive considerable support from the judiciary, as “the ultimate authority to interpret and defend the public trust in Hawaiì rests with the courts of this state.” See In re Water Use Permit Applications, 94 Haw. at 143.

261 See Thompson, supra note 224, at 277 (“When resource users defer to a regulatory authority, they prefer authorities who they trust and know, with whom they share common attributes, and who treat them with dignity and respect.”).

262 See Nicole Bartlett, Recreational Fisheries, HAWAIÌ FISHING NEWS, Sept. 2006, at 15 (describing federal NOAA grants available under the Coral Reef Conservation Program and Marine Debris Program for a “number of projects in Hawaiì, including stream restoration projects on Kauaì, volunteer reef restoration and projects in Hamakua Marsh and Heèia State Park . . . . Universities, state government, NGOs, fishing clubs and community organizations are all eligible to apply”).


effects.263 Apart from relying solely on the accrual of potentially costly scientific evidence to achieve this certainty, Thompson suggests using the mobilizing effect of “proposed solutions to commons dilemmas — in particular, the fear that the solution will rob the resource user of control over his livelihood.”264 In lieu of accepting the proposed solution that apparently robs them of control, many users would prefer “[e]ven in a crisis . . . to retain some degree of personal control over their resource decisions.”265

Thus, a proposed large-scale management “solution” by a potentially persuasive anti-fishing lobby might cause individual fishers to organize for collective action. The net cast by such a proposal must be large, to threaten a sufficient number of user-stakeholders and to prevent inefficient divisiveness among different types of users.266 Although under the public trust doctrine the constitutional and political feasibility of actually eliminating the “public right to fish” would likely prevent actual implementation of such a proposal,267 this has not prevented prominent fishers from perceiving even modest “anti-fishing” legislation as “terrifying.”268 The challenge of this type of solution will be to ensure a

263 See Thompson, supra note 224, at 277.

264 Id.

265 Id. at 276. While implementation of the proposed solution may “increase the chances for defection and thus decrease the chances of success,” actual implementation should not be necessary. The threat of such a solution alone serves to increase social certainty, and may have the added benefit of providing a baseline of no control by which alternative user-based solutions (involving the sacrifice of some control) would appear preferable. See id.

266 See, e.g., Nickelsburg, supra note 225, at 1394. The benefits of cohesion in this context weigh strongly towards avoiding an impasse among users vulnerable to the divisive halo effect. Furthermore, “parties can inculcate their own values in others through discussion, example, and moral suasion. Individuals may develop new common values . . . which may in turn redefine their calculus of the costs and benefits of cooperation.” Id

267 HAW. CONST. art. XI, § 6 (“[A]ll fisheries in the sea waters of the State not included in any fish pond, artificial enclosure or state-licensed mariculture operation shall be free to the public, subject to vested rights and the right of the State to regulate the same . . . the State may condemn such vested rights for public use”). But see In re Water Use Permit Applications, 94 Haw. at 141-43 (discussing the State’s constitutional duty to protect public trust water resources with “planning and decisionmaking from a global, long-term perspective”). Similarly, the constitutional duty to protect marine resources for “future generations” may allow the State some discretion in implementing large-scale restrictions on many types of exploitative uses. See id. at 143.

268 See, e.g., Antolini, supra note 199, at 43 (“[P]rominent Hawai`i fisher Mike Sakamoto, host of a popular . . . TV show on fishing . . . wrote that the [MPA] bill could close down 100 percent of Hawai`i’s shoreline fisheries . . . He called the [MPA] bill ‘terrifying,’ commenting . . . ‘we will lose the right to fish, period’.”).

2008] Tanaka 277

directed response by those fishers galvanized by such a threat; the response should be steered towards an acknowledgement that each user must play a part in preventing this “tragedy.”269 Fortunately, existing fishing interest groups could provide the needed infrastructure for a larger movement.270 In the face of certain destruction of their collective interests, a collective action among these groups could go a long way towards users’ abandoning of their individual courses of action.

iii. Help Visualize Future Loss by Focusing on Current Costs

Another method of mitigating uncertainty would focus public attention on the “definite, rather than uncertain, and immediate, rather than distant,” costs of overuse.271 In drawing attention to immediate costs, “resource users . . . may decide that these costs provide a more compelling reason than the risk of even a future catastrophe to find a solution to the commons dilemma.”272 In pursuit of this strategy, media announcements might showcase examples or anecdotal reports of significant violations that occur daily. While the implicit criticism of state agencies might appear politically distasteful, the visceral appeal to fishers and other concerned users should help persuade them to make sacrifices for collective action.273 Publication of serious fisheries regulation violators, discussed below, might also help to focus attention on the current costs of exploitation.274

269 Another potential challenge may be in persuading any entity to endure the likely political and social backlash from making such a proposal. To avoid exacerbating the widespread distrust for government regulation such an entity will likely need to be independent from state agencies.

270 See, e.g., Nicole Bartlett, Recreational Stakeholders Meet, HAWAI`I FISHING

NEWS, Dec. 2006, at 28 (“[The Recreational Fisheries Action Team is a] group of more than two dozen representatives from across the state whose organizations are actively involved in recreational fisheries in Hawai`i.”); Brian Funai, supra note 213, at 33 (“[An] information network [is needed] for fishers, government and other interested parties, promote data collection and research programs to create better relationships between fishers, resource managers and the scientific community; promote and develop programs that help educate fishers and the general public to increase awareness about resource issues.”).


272 Id.

273 See id. (“Visualization, however, will require us to go beyond data to analogies, to pictures, and to teaching people exactly what it will mean if a fishery is closed because of overuse.”).

274 Interview with William Aila, supra note 184; see also Thompson, supra note 224, at 275. Such publication would help users to visualize the communal costs of individual courses of action. Publication could also serve similar societal roles as ancient Hawaiian “narratives . . . used to frighten people into obeying the rules of conservation.” See HAWAIIAN FISHING LEGENDS, supra note 32, at xv.


iv. Open And Maintain Lines of Communication

Finally, both Ostrom and other researchers have noted the value of communication networks in mitigating the effects of uncertainty.275 Ostrom describes how in laboratory simulations,

when communication is unconstrained . . . participants are far more likely to devise joint strategies that achieve higher joint outcomes than when communication is constrained

. . . As users come to recognize through communication that demands are close to or are exceeding the yield, then one can expect that they will share an understanding that continuance of their independent strategies will seriously harm the CPR.276

Other researchers have likewise noted how communication can mitigate the “halo effect” of uncertainty, particularly as “ongoing communication can enable parties not only to express their own positions more fully, but also to dispel misperceptions held by their bargaining partners.”277

Fostering communication between Hawai`i’s nearshore users through both formal and informal networks should thus help to alleviate the effects of uncertainty. Fortunately, current technology allows unprecedented levels of information transfer between otherwise isolated individuals. For example, online forums appealing to fishers and divers have already given rise to online communities of thousands.278 Such forums can be supplemented by more traditional interactions between community leaders and members; even “small scale, early interactions can lead to larger-scale bargaining solutions.”279 Although not a comprehensive solution, utilizing both old and new networks of communication—uninhibited by political biases or factious agendas—should help to remove the barriers of uncertainty.280

275 Ostrom, supra note 16, at 301-302. Ostrom also discusses important distinction between conveying research information to “the appropriators themselves or only to central agencies who are not involved in the day-to-day operation of the CPR system.” Id. at 312.

276 Id. at 301-02.

277 Thompson, supra note 224, at 1394. Communication through “repeat play” may further reduce conflict costs. See id.

278 See, e.g., Online discussion forums at http://www.ulua-fishing.com and http://www.hawaiiskindiver.com/community.


280 See Ostrom, supra note 16, at 302.

2008] Tanaka 279

2. Coordinated Strategy Alternatives Exist

Ostrom’s second factor relates to the capacity of resource users to understand that a solution to the commons dilemma exists. This requires some familiarity with actual success stories, as “[o]ne would expect appropriators with little or no common experience with or knowledge of successful efforts to achieve coordinated strategies to have greater difficulties in developing strategies to manage a CPR.”281 Other considerations include the users’ “certainty of their own status as owners” and “capacity to take local initiative.”282 While consensus of successful strategies does not appear necessary, this factor does require acknowledgement that some viable options exist.

a. What Alternatives? The Problematic Lack of Knowledge

The lack of common knowledge of successful management strategies appears to present the largest obstacle in satisfying this factor. Apart from the promulgation of DLNR regulations,283 MPAs could be the only time-tested management strategies of common knowledge.284 Unfortunately, both public and environmental policy theorists have not accepted these methods as effective in practice. As Denise Antolini, the Environmental Law Program Director at the University of Hawai`i’s William S. Richardson School of Law, observed:

[t]he [MPA] designation process has been piecemeal, slow, and opportunistic . . . . Once designated, the reserves created generally have been small, underfunded, undermanaged, overused, and not networked. Despite the best intentions and substantial efforts of many DLNR staff and caring communities statewide, the current patchwork of protected sites seems to be patently insufficient, even to the unscientific eye, to assure the sustainability of Hawai`i’s marine resources.285

281 Id. at 302.

282 Id.

283 See Haw. Rev. Stat. § 190-3 (2007) (enabling the DLNR to “adopt rules governing the taking or conservation of fish, crustacean, mollusk, live coral, algae, or other marine life as it determines will further the state policy of conserving, supplementing and increasing the State’s marine resources”).

284 Antolini, supra note 199, at 37.

285 Id. at 40, 38 (“One of the most visible . . . FMAs is along the less tourist-frequented end of Waikiki Beach . . . . An initial concern is that it offers only illusory protection because fishers pounce on the easily accessible fish at the moment of each annual opening”).


As discussed earlier, proposed expansion of MPAs have also led to “vehement” opposition by “many of Hawaiì’s recreational and nearshore commercial fishers.”286

Without examples of successful strategies within the general knowledge of Hawaiì’s nearshore commons users, realization of Ostrom’s second factor appears difficult at best.

b. Getting the Word Out on the Potential for Success

Fortunately, Hawaiì has two characteristics that may present viable alternative solutions to its tragedy of the nearshore commons. First, the traditional Hawaiian system of sustainable management proved for centuries that almost a million residents could depend on coastal resources without the depletion of resources evident today.287 Even with the konohiki rights restrictions after the Organic Act, areas remaining under the protective stewardship of konohiki may have maintained sustainable fishery stocks until Statehood.288 Moreover, the basic religious concepts that served as a foundation for the ancient Hawaiian management system continue to exist as a social philosophy.289 Not surprisingly, many cultural and community leaders as well as environmental policy theorists advocate implementing a culture-based management scheme.290 Giving these advocates a voice in the communities of fishers and other resource users, and allowing them to adequately publicize the basic possibility of successful management, may thus help to instill the realization necessary to achieve Ostrom’s second factor.

The second characteristic conducive to establishing the existence of successful strategies lies in the observation that in the context of

286 Id. at 36.

287 Interview with Chaney, Kūpuna (Dec. 18, 2002) in 2 ORAL HISTORY

INTERVIEWS: KA HANA LAWAIÀ A ME NA KOÀ KAI ÈWALU, supra note 1, at 1316-17 (discussing the strict and successful enforcement of his uncle’s konohiki fishery rights).

288 Id.; see also Interview with William Aila, supra note 184.

289 Lucas, supra note 15, at 232 (“While the kapu system itself vanished, certain basic Hawaiian religious concepts have remained. These include the concept of mana or sacredness attached to places, persons, or things, alohaàina or respect and love for the àina and its natural resources . . . Today, these religious beliefs and the practices which actualize them continue to permeate Native Hawaiian life”).

290 See, e.g., Kumabe, supra note 202, at 257 (“[D]espite that nearly every member of the Hawaiian population regularly participated in some form of fishing . . . fisheries in Hawaiì were resilient and healthy. . . the State should incorporate native Hawaiian knowledge into its modern regulatory scheme”); see also Jan TenBruggencate, More Fishing for Fewer Fish, HONOLULU ADVERTISER, July 14, 2003 available at

http://the.honoluluadvertiser.com/article/2003/Jul/14/ln/ln04a.html (last visited April 30, 2008) (quoting fisherman Isaac Harp of Maui, “‘I think we need to get back to the ahupuaà system where the people in the community are in charge of managing the fisheries in their area and deciding who can fish there’”).

2008] Tanaka 281

fisheries management, “the state’s basic governance framework is strong and flexible.”291 Supplemented by Hawai`i’s cultural history of stewardship, this has allowed the state to experiment with various regulatory approaches, including small-scale community-based management regimes.292 Such an approach, with the statutory recognition of a traditional cultural management system, indicates that the historically successful principles of stewardship might yet apply to Hawai`i’s fisheries.293 Promoting and publicizing the success of any such management regime, whether organized under current or future statutory authority, may prove extremely helpful in garnering acknowledgement of successful management solutions.

3. Other Users Can Be Counted on to Change Strategies

Ostrom’s third factor requires giving assurance to participants that

if they change to more costly, coordinated strategies, others will do likewise. . . . Each individual must be assured that he or she will not be the ‘sucker’ who adopts the most costly coordinated strategies (that is, cooperates) while others yield to their ‘temptation’ not to cooperate and continue their own practices.294

Ostrom idealizes this factor as relying on “relationships of trust and reciprocity” among users of a commons.295 Unfortunately, the perception of mutual trust often decreases with factors such as the number of users, distance of users’ residences to the commons, non-homogeneity, and different and conflicting uses.296

Apart from carefully crafted relationships of mutual trust, the “assurance” necessary for Ostrom’s third factor “may also be obtained through reliance on formal police, formal surveillance and investigations,

291 Antolini, supra note 199, at 37.

292 See Haw. Rev. Stat. § 188-22.6 (2007) (enabling DLNR to “designate community based subsistence fishing areas and carry out fishery management strategies for such areas. . . for the purpose of reaffirming and protecting fishing practices customarily and traditionally exercised for purposes of native Hawaiian subsistence, culture, and religion”) available at

http://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0188/HRS_0188-0022_0006.htm.

293 See id. In a similar vein, the state Supreme Court has recognized that the “people of our state have validated resource ‘protection’ by express constitutional decree.” In re Water Use Permit Applications, 94 Haw. at 131.

294 Ostrom, supra note 16, at 302.

295 Id.

296 See id. at 299, 302-303.


and formal courts.”297 In other words, vigorous and public formal enforcement may help to increase the expectation of cooperation.298

a. Too Many People, Not Enough Enforcement

Ostrom recognizes that the number of stakeholders can significantly reduce the expectation that enough users will participate in a coordinated management strategy.299 Other researchers have noted that “the greater the number of parties and the greater the degree of heterogeneity, the greater the likelihood of holdout.”300 A critic of the Environmental Protection Agency’s Ostrom-based management approach likewise observed that “any effort to ‘involve all of the stakeholders’ in such broad systems could become unwieldy or even incoherent.”301 Given the number of users of Hawai`i’s shorelines, along with the diversity of their interests, a system of mutual participation through trust alone seems highly unlikely.302

Unfortunately, the alternative to mutual trust—formal enforcement —has so far done little to raise actual assurance that other users will follow management regulations.303 In its summary of findings, the 2006 state audit of DLNR’s enforcement branch DOCARE confirmed the “public perception . . . that the state is unable to respond effectively to or enforce laws relating to the conservation of natural resources” 304:

[The] enforcement division generally does not have enough officers to patrol land and waterways and also respond to hotline calls. As of October 2005, the enforcement division . . . provides partial coverage for about 18 hours a day, seven days a week. Branches usually do not have officers on duty during the late evening and early morning hours—a favorite time for poachers and troublemakers. Also, personnel are usually not available to answer hotline calls

297 Id. at 302.

298 Nickelsburg, supra note 225, at 1408 (analyzing the effectiveness of community-based regulation in various examples, noting that a “hybrid voluntary-regulatory strategy can be successful if the regulatory body encompasses the appropriate geography, is authorized to work with the citizens’ group, and is empowered to impose an agreed-upon solution on the ecosystem. Two barriers to such conditions, however, are resources and authorization”).

299 See Ostrom, supra note 16, at 299, 302.

300 Nickelsburg, supra note 225, at 1388.

301 Id. at 1390.

302 See Ostrom, supra note 16, at 302.

303 THE AUDITOR, supra note 24, at 23.

304 Id.

2008] Tanaka 283

after hours. Because of these shortages, enforcement officers rarely use available boats to patrol the State’s waterways. During FY2004-05, officers patrolled waterways on only 163 occasions totaling about 846 hours—less than a half work year—and providing virtually no coverage of the coastline out to the three-mile limit. . . . The enforcement division’s officers are clearly spread too thin.305

The audit also found that DOCARE’s management strategy failed to address techniques or strategies for enforcing laws and rules protecting natural and cultural resources. For example, the manual does not describe the hotline for concerned citizens to report violations of laws and rules. It also fails to mention various enforcement partnerships such as the mauka-makai watch concept (like a neighborhood watch), which encourages people who use, live closest and are involved with resources to watch out for biological and human threats and call the hotline when necessary. . . . Based on best practices of other conservation enforcement organizations, we expected the enforcement division would have developed strategies based on analyses of crime statistics, compliance rates, and information about wildlife, fish, and habitat conservation needs. However, the enforcement division has not developed or distributed strategies governing conservation enforcement operations.306

As mentioned earlier, the then-director of DLNR acknowledged that these management problems had “been going on year after year after year."307 Indeed the enforcement difficulties that appear to have pervaded DLNR for years may still continue to exist.308 The lack of any public perception of enforcement may prove one of the greatest obstacles in achieving the assurance necessary for the third Ostrom factor.

305 Id. at 17.

306 Id. at 47.

307 Derrick DePledge, DLNR ineffective, audit says, HONOLULU ADVERTISER, Jan. 6, 2006 available at

http://the.honoluluadvertiser.com/article/2006/Jan/06/ln/FP601060360.html (last visited April 30, 2008)

308 See Statement of Hermina Morita, Rep., Comm. on Water, Land, Ocean Resources, and Hawaiian Affairs, Statement during Hearing on H.B. 2332, 24th Leg., Reg. Sess. (Feb. 8, 2008) (With regard to blatant unauthorized commercial activities, “I’ve waited twenty years for rules, enforcement . . . . This is not an isolated incident . . . Its happening all over the state . . . Kauai . . . Kailua . . . Jesus, all over!”).


Apart from DLNR’s failure to visibly fulfill its enforcement role, part of the problem with public perception may also rest with the judicial system. One police officer, an avid fisherman and diver who asked to remain anonymous, found that despite his vigorous citation of poachers and other violators, all of his cases were thrown out.309 When asked whether he knew of other officers with similar experiences, he replied that they mostly just “laughed at me” for trying to enforce fisheries violations.310 “I fish, I dive, I know the rules, and I know what section to cite to,” he explained. “No one else really does.”311 William Aila, a community leader active in fishery management reform, likewise understands that prosecutors and judges often “consider marine violations insignificant.”312 Even in other jurisdictions, researchers have noted that

Law enforcement officials are not able to count on sustained support from the judiciary in convicting and punishing business poachers. Prosecuting lawyers are not especially experienced, effective, or predictable in obtaining convictions. In addition, most judges are reluctant to find business poachers guilty because severe penalties . . . deprive fishers and those dependent on them of an economic livelihood. The courts tend to impose sanctions on only the most blatant offenders.313

Whether for these reasons or others, the judicial system in Hawai`i has not provided the necessary incentive for meaningful enforcement. Without the formal enforcement infrastructure, the realization of the third necessary Ostrom factor appears unlikely.

b. Fixing the Enforcement Process, and Getting Users Involved

Clearly, addressing enforcement issues should take priority in achieving this factor. Fortunately, many fishers and other recreational users appear ready and willing to supplement the enforcement process.314

309 Interview with Anonymous, Officer, Honolulu Police Dept., in Honolulu, Haw. (Nov. 13, 2007).

310 Id.

311 Id.

312 Interview with William Aila, supra note 184.

313 John L. McMullan & David C. Perrier, Lobster Poaching and the Ironies of

Law Enforcement, 36 LAW & SOC’Y REV. 679, 703 (2002).

314 See, e.g., Posting of portuguesepoint to hanapaa.com/forum/index.php, Topic: f**kin Lay netters (May 28, 2007) (“I could see about 30 Omilu in their net. They were all about 5-10" long . . . I called DLNR and they said that they’ll check on it in the morning. hah. like they’ll still be there in the morning. Anyway, I got their license plate.”); Posting of landkumu to hanapaa.com/forum/index.php, Topic: New Gillnet

2008] Tanaka 285

Efforts by such individuals could be facilitated by posting signs near beach access routes and other fishing zones with appropriate contact numbers for official enforcement officers. Signs and brochures in multiple languages315 could also outline the steps individuals may safely take to assist enforcement officers in establishing probable cause necessary for inspection of coolers and containers that may contain evidence. Rewards from levied fines might offer additional incentive for individual users. Finally, ensuring access to fishing and shoreline areas, especially at night, would allow the assumed majority of legal fishers to monitor such areas for illegal activities.316 Any community-supported enforcement program would not only offset the costs of monitoring and enforcement, but the heightened risk of liability would also deter illegal activities.317 As Ostrom suggests, “the rules of an AO are enforced by the appropriators themselves backed up by some ‘official’ enforcers also appears to be an important condition for [the AO’s] survival.”318

Despite efforts by fishers and other users to help enforce existing regulations, however, issues still remain within the current enforcement process. Frustration with this infrastructure has already led concerned users to advocate actions bordering on vigilantism and violence.319 In

Regs (Mar. 20, 2007) (“When I called, the dispatcher guy responded with, ‘okay, thanks for letting us know, I’m not sure if any officers are available right now but I will work on it’. Sounded like a classic brush off to me. I was agitated to say the least.”); Posting of Haàkoa to hanapaa.com/forum/index.php, Topic: Laynetters at Makua (June 19, 2006) (“Right after they pulled there net out of the water they pulled many small fishes then set there net again. The thing is, I was there since saturday night and I havent seen them check there net once. I never even seen them drop it. I called the 587 0077 number and left a message but nobody showed up. It really pissed me off because they threw alot of dead fishes back in the water.”).

315 See Nicole Bartlett, Recreational Stakeholders Meet, HAWAIÌ FISHING NEWS, Dec. 2006, at 28 (discussing the need for outreach projects for other ethnic groups because “everything’s in English!”).

316 Ostrom, supra note 16, at 306 (“Users are the effective ‘public eyes’ that cover more of the territory than official guards could ever see.”).

317 See also Thompson, supra note 224, at 245 (“The opacity of user behavior is one of the factors that contribute to the tragedy; unable to gauge others’ behavior, each user feeds on the fear that others are maximizing their consumption and, therefore, increases his or her own consumption. The same opacity makes agreed-upon restrictions difficult, if not impossible, to enforce. And resource users are likely to advocate

solutions only if they are enforceable.” (emphasis added)).


319 See, e.g., Posting of OiOiOi to hanapaa.com/forum/index.php, Forum topic: Reporting law breakers to DLNR (Nov. 11, 2005) (“[T]o be totally honest, if I was there when this incident happened I would’ve cut that net up just like Fisherman said.”); Posting of Haàkoa to hanapaa.com/forum/index.php, Forum topic: Laynetters at Makua (June 19, 2006) (“So I rigged my pole with a 12 oz lead and a couple of treble hooks and


terms of DOCARE’s enforcement program, little can be done short of directly addressing the issues raised by the state auditor. A more proactive management approach would go far towards realizing this goal. Concerned members of the legal community could also volunteer their time to assist in the legal research necessary to guide enforcement techniques and procedures.

With respect to enhancing the role of the judiciary in enforcement issues, Environmental Court bills have been introduced to “promote and protect Hawaiì’s natural environment through consistent and uniform application of our environmental laws by establishing environmental courts to hear cases and preside over administrative proceedings related to environmental law.”320 Ironically, the judiciary opposed the measure, citing “no demonstrated need to single out environmental cases from among the many other types of cases for special treatment.”321 As William Aila reasoned, “No one understands what [the bill] is.”322

Aila suggests another alternative: appealing to district court judges directly. He describes one possible solution as “a video that judges can watch, explaining to them the importance of the ocean and its resources.”323 Videos specifically designed to educate both DLNR game wardens and interested police officers might similarly contribute to more meaningful enforcement efforts. Other state-sponsored outreach programs might also remind both judges and officers of the state’s recently recognized constitutional duty to protect natural marine resources.324

got as close to there boat as I could from shore then bombed it to snag there net. They got pissed off and started swearing.”); Posting of typical808 to hanapaa.com/forum/index.php, Forum topic: no fish anymore (April 17, 2007) (“[I] wouldve brought out the trusty knife and rendered the net useless.”). Other communities have resorted to vigilante enforcement of informal rules as a fisheries management technique. See Leal, supra note 63 (describing vigilante acts of lobster fishers).

320 H.B. 1973, 24th Leg., Reg. Sess. (Haw. 2008) (“[A bill to] establish . . . environmental courts to hear cases and preside over administrative proceedings relating to environmental law.”) available at http://www.capitol.hawaii.gov/session2008/Bills/HB1973_.htm.

321 Written Testimony from Thomas Keller, Administrative Director of Courts, Hawaiì State Judiciary, to Hermina M. Morita, Chair, House Comm. on Env’t and Envtl. Protection, on H.B. 1973 (Relating to Public Lands) (Jan. 24, 2008) available at http://capitol.hawaii.gov/session2008/Testimony/HB1973_EEP_01-24-08_.pdf.

322 Interview with William Aila, supra note 184.

323 Id.

324 In re Water Use Permit Applications, 94 Haw. 97 (2000) (holding that the state constitution mandates not only that public trust resources be held for public use, but that the state protect and preserve natural resources for future generations). The Hawaiì Supreme Court thus held that “the conventional notion of the public trust fashioned in the context of navigable and tidal waters offers only a partial picture of the water trust resources of the state.” Id. at 139. This development is consistent with other

2008] Tanaka 287

Assuming that such videos or other outreach programs could effectively imbue a greater sense of judicial responsibility in enforcing regulations, this strategy could offer a less costly alternative to establishing an environmental court.

Finally, use of creative penalties might also help to publicize enforcement efforts, contributing to the mutual assurance of users.325 As discussed previously, public reprimands of severe violators could focus attention on the costs of overexploitation. Increased publicity of severe violators would also restore public faith in the enforcement process, as well as act as a powerful deterrent for potential violators.

4. Benefits of Future Coordinated Strategies Will Outweigh the Costs

Ostrom’s final factor focuses on the users’ “expectation that the costs of future decisionmaking about coordinated strategies will not exceed the benefits to be derived from the use of coordinated strategies.”326 Major influences on this factor include the size and homogeneity of the decisionmaking group, and the existence of entrepreneurial individuals or organizations that might help in managing the commons.327

a. Too Many People, Too Many Ways to Exploit

Unfortunately, the community of nearshore users in Hawai`i is neither homogeneous nor limited in size.328 As a result, conflicting positions may arise due to the “egocentric interpretations of fairness” related to the aforementioned halo effect.329 Conflicting theories of management and suspicion could likewise inhibit large-scale community management efforts, and may indicate for many that the cost of future decisionmaking may prove high, indeed.330 Meanwhile, the formation costs of any management strategy may prove particularly discouraging:

jurisdictions, in which the public trust doctrine—which had historically served to create commons dilemmas—has been utilized to justify or even compel steps towards solutions. See Campbell, supra note 86, at 83 (“By shifting the nature of state authority over natural resources from proprietary right to fiduciary duty, the public trust doctrine is significantly altering the obligations of the state with respect to resource management.”).

325 See Email from Isaac Harp, Kūpuna (Feb. 6, 2008) (describing the potential effectiveness of creative penalties such as having violators’ “names and photographs published on the front page of the daily newspaper”).


327 Id.

328 See, e.g., Antolini, supra note 199, at 40 (discussing the increasing user pressures from the resident and visitor population).


330 See, e.g., Antolini, supra note 199, at 36 (“[There are] strong internal


The complete effort may involve hours of meetings and information-gathering and may last for years. Voluntary participation in a bargaining regime is itself a collective action problem subject to its own structural barriers. Community members may lack the time to devote to an exhausting, collaborative effort. Moreover, professional and scientific assistance may not be available or may be prohibitively expensive.331

b. Setting a Framework for Collaboration

The abstract and uncertain nature of this factor makes a comprehensive proposal difficult to describe. A preliminary step, however, might involve establishing a framework for a representative, all-inclusive coalition of local fishing clubs and other community networks.332 This would somewhat limit the size of the perceived decisionmaking body, while taking into consideration the numerous interests at stake.333 Fortunately, several networks of users already exist, either through federally funded initiatives or through the efforts of individuals.334 Even the loose affiliation of “regulars” at popular fishing areas might also be organized into informal sub-groups within this network.335 Popular or highly regarded figures within certain user spheres could also be called upon to lend their influence in recruitment and formation of additional groups.

Once a framework has been established, it will be important to ensure that it has both regulatory authority and a cost-efficient means of resolving conflicts.336 Legislative action might help with the former, and provide an incentive for user communities to voice their concerns.337 As

differences in opinion among DLNR staff on the utility of marine reserves and the role of community governance”); Mail Buoy-WESPAC’s Response to DLNR’s Rebuttal to

Seasonal Bottom Fish Closure Plan; 2006 32 HAWAI`I FISHING NEWS, June 2006, at 21 (indicating debate between federal and state agencies as to proper management of bottomfish fisheries).


332 Ostrom, supra note 16, at 304. (“[F]or large-scale common-pool problems . . . [i]nstitutional designs relying on nested structures of smaller organizations within larger organizations are most likely needed.”).

333 See id. at 303 (“Almost all theories of organizations posit that decision-making costs rise with the size of the group making decisions.”).

334 See, e.g., Bartlett, supra note 270, at 28.

335 See Funai, supra note 213, at 32.

336 See Ostrom, supra note 16, at 306-07 (discussing the need for authority rules, and suggesting the use of “de facto legal frameworks” to resolve conflicts).

337 See Nickelsburg, supra note 225, at 1407-1408. Nickelsburg suggests the use

2008] Tanaka 289

for reducing the cost of unnecessary conflict, psychological studies indicate that the mere dialogue fostered by such a coalition helps to overcome the “self-serving interpretations of fairness. As a resource user learns more about other users’ perceptions of fairness—and the reasons for those perceptions—the user’s own view of the fairest result grows less biased.”338

Continuous dialogue at an early stage and in an informal environment could further help to decrease the perception that future decisionmaking will be costly.339 For example, “repeat play” or the prospect of continuing interaction between user representatives “allows parties to build credibility, trust, and respect, or ‘social capital,’ by dealing fairly, by performing their obligations, and by punishing defections.”340 Continuous interaction could also give rise to a more official process for resolving substantial conflicts;341 establishing a conflict resolution process could thereby further reduce the perceived costs of future coordinated strategies.342 Along these lines, cooperative negotiation training for group representatives could also reduce the perception of long term costs.343

of a “‘Sustainability lobby’ directed toward local legislative bodies. Unlike an independent third-order regime, however, these groups would not need to include every single stakeholder.” Id.


339 Id. at 271 (“We can structure discussions with resource users . . . to minimize the impact of allocative concerns on the resource users’ willingness to agree that there is a serious problem that needs to be addressed and to creatively brainstorm potential solutions. Discussions might begin, for example, by everyone agreeing on general rules or norms for any ultimate allocation of burdens; some allocations might be ruled out as unacceptable at the very outset. Through such early agreements, we might effectively reduce and circumscribe resource users’ concerns about how the resolution of the issues might ultimately affect them; this in turn can produce a more open discussion of the problem and potential solutions.”).

340 See Nickelsburg, supra note 225, at 1393 (“Parties who anticipate interacting in the future, rather than in a one-shot deal, no longer need assume that their bargaining partners will defect . . . repeat dealing also enhances the opportunity for communication, [which] can enable parties not only to express their own positions more fully, but also to dispel misperceptions held by their bargaining partners. Small-scale, early interactions can lead to larger-scale bargaining solutions that otherwise would have been foregone.”).

341 Cf. Ostrom, supra note 16, at 307 (“[C]onflicts between residential users can be worked out within their own de facto legal framework.”). By fostering dialogue between users, they may recognize each other as “residential” users and develop de facto means of resolving conflict. See id. at 305-06 (describing how “modern modes of communication” can help in the establishment and communication of rules).

342 Id. at 312 (by balancing the benefits and detriments of conflict, the “development of effective conflict resolution mechanisms within an AO is also an important aspect of its capacity to achieve efficient and equitable performance”).

343 See Hawai`i State Judiciary: Alternative Dispute Resolution,


IV. CONCLUSION

The solutions proposed herein are neither exclusive nor exhaustive. They simply offer examples of management strategies that could help to foster the initial organization necessary for user-based community management.344 Satisfying Ostrom’s factors would help to eliminate obstacles that have made formation of such an organization cost prohibitive if not socially impossible.345 Once such factors have been addressed, other actions must be taken to create a truly effective and survivable user-based organization to sustain our nearshore commons.346

Admittedly, this process will require a “great deal of faith in the ability of such diverse interests as property owners, industry, and environmentalists to find common ground and reach consensus solutions through deliberation.”347 Additional obstacles such as the uncertainty of funding may also inhibit both initiative and momentum towards a comprehensive solution.348 In this respect, it is important for policy makers and community leaders to acknowledge that the psychological effects of uncertainty and the political influences that prevent users from organizing may very well affect their own judgment. For example, the potential costs of proposed solutions may appear to outweigh uncertain future benefits.349 Leaders and representatives must strive for self-

http://www.courts.state.hi.us/page_server/Services/AlternativeDispute/4E3D896DFE782019EB28F79FE3.html (last visited Apr. 30, 2008).

344 Ostrom, supra note 16, at 304 (“The creation of an organization and the development of coordinated strategies for using a common-pool resource are no guarantee that an organization can survive over time.”); see also Nickelsburg, supra note 225, at 1379-80.

345 Ostrom, supra note 16, at 303 (“Expectations about decision-making costs are affected . . . [by] prior experience of and knowledge about organizational arrangements.”).

346 See id. at 304-312 (discussing the necessary factors for the continued survivability of an AO). Cf. Nickelsburg, supra note 225, at 1407 (discussing legislative lobbying as an alternative to the fully realized “constitutional” AO).

347 Nickelsburg, supra note 225, at 1381.

348 See, e.g., Catherine Lo, Blind Ban’s Bluff: The Proposed Gill Net Regulations

Beg the Question: Are There Still a Lot of Fish in the Sea?, HONOLULU WEEKLY, Aug. 2, 2006, http://honoluluweekly.com/cover/2006/08/blind-bans-bluff/ (“But the 3,000 pounds of weke ula caught by commercial gill netters in Hawai`i yields—at, say, a wholesale rate of $2 a pound—about $6,000, hardly enough to justify paying for scientific research on the species.”).

349 Thompson, supra note 224, at 277; see also Antolini, supra note 199, at 36 (“DLNR’s last-minute reservations about the [Marine Reserves Network Act] were singularly focused on the lack of state budgetary resources, reflecting the new Republican Governor Linda Lingle’s position that, because of Hawai`i’s severe economic crunch, state agencies could not publicly support any unfunded mandates. Severe internal

2008] Tanaka 291

awareness and open communication with other stakeholders.350 Study of mediation strategies may also aid in efficient distribution of management costs and in conflict resolution within the movement to save Hawaiì’s nearshore fisheries.351

As a final note, readers should understand that long-term solutions to commons dilemmas can and do take many forms; successful user-based organizations “vary from relatively informal, meeting occasionally for appropriators to discuss how their individual strategies will affect one another, to formal organizations with written rules clearly specifying mutual rights and duties and procedures for making binding decisions on all members.352 Emphasis on previous or potential solutions thus should not constrain the formation of creative or unique solutions, specifically tailored to Hawaiì’s unique communities.

The treatment of fisheries in Hawaiì has clearly satisfied the requirements for a classic tragedy of the commons situation. Given the relative state of the fisheries today, any solution will require financial and personal initiative by members of the government and community alike.353 The road ahead may seem daunting, but “we will need to keep plugging away, no matter how pessimistic we might become at some stages of the effort.”354 We must remind ourselves always that with sufficient momentum towards the establishment of a community-based management regime, we can find a way to save our fisheries—for ourselves, and for future generations.

differences in opinion among DLNR staff on the utility of marine reserves and the role of community governance also severely undermined the bill’s success.”).

350 See Hardin, supra note 2 (“[A]utomatic rejection of proposed reforms is based on one of two unconscious assumptions: (1) that the status quo is perfect; or (2) that the choice we face is between reform and no action; if the proposed reform is imperfect, we presumably should take no action at all, while we wait for a perfect proposal.”).

351 See Center for Alternative Dispute Resolution, http://www.courts.state.hi.us/attachment/67510F2846F394F310ADE12DDA6/CADR_FINAL_S.pdf (last visited Apr. 30, 2008) (describing how mediation techniques can resolve conflicts “more efficiently and with greater satisfaction to all parties”).


353 Ostrom, supra note 16, at 308-09 (discussing the balance between the benefits of “strictly voluntary” group of users and the survivability of one with full governmental authority).


ho`ohana aku, ho` ōla aku 1 first steps to averting the...

Documents