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The Western Pacific Regional Fishery Management Council is crafting new definitions that could allow more fishing in restricted waters around the Northwestern Hawaiian Islands and American Samoa.

The Honolulu-based council, known as Wespac, and its scientific advisory committee must decide what “non-commercial fishing” should include in the expanded portion of and what “cultural fishing” should mean in American Samoa.

Environmental groups, the territorial government of American Samoa and the have raised concerns over any changes that would enable commercial fishing in places that were set up to be off-limits to longline tuna fleets and others.

But the council has maintained that it is working on legally mandated definitions that are consistent with indigenous practices and balance the health of fish stocks with the livelihoods of fishermen.

“Wespac’s efforts to twist the English language to further its agenda to overexploit our ocean resources recalls Humpty Dumpty’s abuse of language in ‘Through the Looking Glass,’” said Earthjustice attorney David Henkin.

“‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”

The council recommended a rule in 2015, approved by the National Oceanic and Atmospheric Administration, that allowed authorized U.S.-flagged longline vessels to fish closer to American Samoa’s islands beginning in January 2016. The fishermen target albacore tuna for the Starkist cannery there.

The rule effectively shrank the Large Vessel Prohibited Area in the territory to extend 12 miles seaward instead of 50 miles around Tutuila, Manua Islands and Swains Island. The council argued that some of the original reasons for the prohibited area, which the council had created in 2002, no longer existed, such as gear entanglements.

Wespac staff member Eric Kingma said when the prohibited area was established there were roughly 40 smaller alia fishing vessels and about 25 larger longliners.

As a precautionary measure, Kingma said the council put forward a rule that said the alia boats could fish closer to the islands and the longliners had to stay farther out.

But now there is only one active alia longline fisherman, who happens to be the council’s newest member, Eo Mokoma. And the number of longliners has dropped to fewer than 20, he said. The longliners who fish there must have a valid American Samoa permit, which some of the longliners based in Honolulu have.

Government leaders in American Samoa nonetheless took issue with the exemption and sued the U.S. government soon after it took effect.

U.S. District Court Judge Leslie Kobayashi vacated the exemption in March because NOAA’s failed to ensure the rule was consistent with the Deeds of Cession between the United States and the leaders of various Samoan islands.

The deeds, signed more than 100 years ago, require the U.S. to preserve American Samoa’s cultural fishing practices.

The council’s , taking the issue up in June, recommended the full council adopt a definition that could include commercial longline fishermen as part of American Samoan “cultural fishing.”

The group of scientists said the type of gear used is less important than the cultural distribution of the catch and who is doing the fishing. But some committee members were hesitant to even consider the matter.

“I’m not comfortable defining American Samoan ‘cultural fishing,’” said Debra Cabrera, a scientist at St. John’s School in Guam. “Cultures change, cultures evolve.”

“I’d be more comfortable if we had a Samoan here,” said Craig Severance, a retired University of Hawaii Hilo professor.

The committee’s chair, Paul Callaghan, retired professor from the University of Guam, said the definition should include things that can be measured and checked, such as whether the vessel owner and crew are legal residents of American Samoa and pay their taxes there.

Wespac Executive Director Kitty Simonds was less enthused about that approach.

“That’s so American,” she said, adding that “fishing is a culture of all islands because that’s what you do.”

The full council took up the definition at its regular meeting the following week in Honolulu, but opted to defer the matter so as to allow time to work with the American Samoa government.

Kingma said the council sent a letter to the territory’s elected leaders a week later but has yet to hear back.

“It’s hard to separate culture and fishing in Pacific islands,” he said. “Even if it’s a commercial venture it’s still part of their livelihood, and not all of the fish is sold. It’s shared amongst the families, friends, churches, community groups.”

But he said just because someone is fishing on a smaller alia boat doesn’t mean it’s necessarily cultural.

“We do recognize there are thresholds,” Kingma said.

He said the exemption was designed to help a longline industry that has been struggling financially in American Samoa for the past several years.

The council’s next quarterly meeting is in October in American Samoa.

Meanwhile, lawyers for the Fisheries Service asked the judge to reconsider her order, but last week Kobayashi denied their request.

“Any definition of ‘cultural fishing’ that includes within its ambit commercial longlining would be in blatant conflict with the court’s ruling,” Henkin said.

‘Clear Conflict’

Under the proclamation President Obama issued in September 2016 to quadruple the size of Papahanaumokuakea around the Northwestern Hawaiian Islands, Wespac has to craft rules for the expanded area.

Those rules involve determining what non-commercial fishing should be allowed.

Instead of just extending the same rules as the original monument, the council is debating whether to allow “customary exchange,” in which fishermen could bring back their catch from inside the monument to trade or sell as a way to recoup costs from the trip.

“Any attempt to define ‘non-commercial fishing’ to include the sale of fish is clearly ludicrous,” Henkin said.

The Office of Hawaiian Affairs, a co-trustee of the monument along with the state and U.S. departments of Commerce and Interior, also does not want to open the customary exchange door.

OHA Chief Executive Officer Kamana’opono Crabbe told the council in his testimony that there’s a “clear conflict” between the definition of “customary exchange” and the non-commercial fishing provision of the presidential proclamation, which says in part that “the fish harvested, either in whole or in part, cannot enter commerce through sale, barter or trade.”

He said there is no history of cost recovery being part of Native Hawaiian traditions of bringing back fish to share with family at home.

“The concept of customary exchange as it is defined by the U.S. federal government is in clear conflict with the traditional and historic practices of Native Hawaiians in the Northwest Hawaiian Islands and the contemporary reasons why Papahanaumokuakea was established,” Crabbe said.

Other federal marine monuments in the Pacific, including Rose Atoll and the Marianas Trench, allow “customary exchange.”

Kingma said it’s hard to distill such definitions into federal regulations, and maybe “customary exchange” won’t end up working for Papahanaumokuakea.

“Fishing is expensive and fishermen need to recoup their costs,” he said, adding that the council would agree this doesn’t involve commercial sales.

The current policy for the monument allows sustenance fishing, which means everything has to be consumed within the monument boundaries and no marine resources can be brought back for consumption.

“We thought that was ridiculous and not necessarily consistent with Hawaiian cultural values of sharing of fish,” Kingma said.

The reason to allow “customary exchange” in the expanded portion of Papahanaumokuakea, which is the area from 50 to 200 miles around the Northwestern Hawaiian Islands, is that the fish caught there are mostly large, pelagic, highly migratory fish, he said.

“It doesn’t make sense if you go up there to fish and catch a tuna, you have to consume all 150 pounds of it?” Kingma said. “Why not be able to fully utilize that catch and share it with your family and friends? You’re just going to eat a little sashimi one night? Let’s get real.”

William Aila, a Native Hawaiian fisherman and former head of the Department of Land and Natural Resources, said the idea of bringing fish or other resources from the monument back to the main Hawaiian Islands to recoup costs “is really commercial fishing under a different definition.”

Wespac members voted to postpone a decision on “non-commercial fishing” until President Trump’s administration finishes its review of national monuments.

The administration is considering whether prohibitions on commercial fishing, mining and other activities inside certain monuments, including Papahanaumokuakea, should be relaxed.

The public comment period wrapped up in July. Federal officials are in the process of considering that input and what should be done, if anything, to the marine monuments.