He didn’t eat the seal, did he?

No Justice Seen For Q39…
Outcome of Court Case Now Sparks Wider Debate

The trial of a Maui man on charges of harassing a Hawaiian monk seal (see The Life & Times of Q39, Vol. 1:2) has been characterised as a fiasco by conservationists.

The 59-year old hobby fisherman was arrested on the Keanae peninsula in rural east Maui on 12 August, 1998 after being videotaped throwing stones and a coconut at the animal. According to later reports, he told witnesses that he "didn’t want the seal to eat his fish."

The victim of the attack was a 1-year-old female code-named ‘Q39’, the first-known pup to be born on Maui according to the National Marine Fisheries Service (NMFS).

© David Jordan
Q39

According to David Jordan, the island resident whose video evidence of the crime prompted the prosecution, "The seal’s day in court turned into a really bad joke."

During the 2 March court appearance, Harry Hueu pleaded no contest to the state harassment charges. As a result – and with the court clock ticking inexorably towards noon and the end of the session – the presiding judge declined to view the video evidence prior to sentencing.

An objection from the prosecution, that the video needed to be screened in order to put the incident into context, was overruled. Referring to the accused, District Judge Yoshio Shigezawa was reported as saying: "He didn’t eat the seal, did he?"

That decision, say critics, allowed the defendant to stand before the court prior to sentencing and to plead extenuating circumstances. However, Hueu’s claim that he "thought the seal was dead", say critics, is directly contradicted by the video evidence that the judge disallowed.

Quickly winding up the hearing, Judge Shigezawa fined Hueu $50 and required him to perform 100 hours of community service. Under state law, the maximum penalty for an offence of this kind is a one-year jail term and a $1,000 fine. The light sentence, coupled with the judge’s refusal to allow an airing of the video evidence, has come under fire by prosecutors, state and federal officials, and conservationists, for sending the wrong message to the public.

The Honolulu Star-Bulletin quoted Deputy Prosecutor Kim Fallone as saying she wanted to have Judge Shigezawa examine the videotape "because Hueu had shown no remorse for hitting the seal." Although critical of the judgement, Fallone conceded that a non-custodial sentence was fairly typical for a first-offence misdemeanour. She reported, however, that Judge Shigezawa had scolded Hueu, warning him that he would serve a jail term and face a higher fine if he harassed a monk seal again.

This, however, did not placate critics. David Jordan, the Keanae resident who videotaped the harassment, agreed with the prosecutor that Hueu should have been fined more money: "I hate to think that it would take a dead seal to make an impact, but if the video I shot of this life-threatening attack is insufficient to persuade a judge that this was a serious offence, then that is indeed the situation."

Harry Hueu, on the other hand, criticised the sentence as "too harsh". Defending his actions, he said that young children, including his nephews, were playing on the beach and that he "feared for their safety."

Privately, Hueu may have counted himself lucky in escaping a tougher sentence, but rather than subsiding into silence, the entire chain of events surrounding Q39 has sparked wider debate in Hawaii, focusing on public, governmental and judicial attitudes towards the Hawaiian monk seal.

An indication by NMFS last September that Federal authorities might step in if state officials ‘dropped the ball’ on the prosecution was quickly discounted by Paul Ortiz, Senior Enforcement Attorney of the National Oceanic & Atmospheric Administration: "Where a state has effectively pursued a prosecution under their Endangered Species Act, it would be very rare for the federal government to also pursue a prosecution. While no one is completely satisfied with the judge’s decision, this situation is not one where the federal government would be inclined to pursue a parallel prosecution, and I will not recommend that we do so at this time. I do not believe that the state ‘dropped the ball’ in this case, and I continue to be pleased with the effort put forth by the State of Hawaii in such cases."

To critics, however, the federal bureaucracy and the judicial system has failed Hawaii’s most endangered marine mammal. "Up to now," says David Jordan, "people have been led to believe that these animals are protected by both State and Federal law. The impression given is that there is a dual safety net for these animals, and if one should fail then the other is there as a failsafe mechanism. So far – with the exception of State DoCARE officers [Department of Conservation and Resources Enforcement], and the possible exception of the prosecutor’s office – when it comes to any ‘enforcement’, Q39 has received nothing more than lip service."

Some state officials share that view. One, involved in the case since the arrest of Hueu, called the sentence "ludicrous". Referring to the disallowed video evidence, he said: "This was one of the few cases that we brought to prosecution that was solid as a rock. Even with the defendant pleading no contest to the charge, we still lose as his fine wouldn’t cover two hours of [the] time involved to include the court appearance."

While Hueu and his supporters have reportedly attempted to influence public opinion by emphasising their native Hawaiian roots, criticism of the harassment has transcended racial boundaries. One of Maui’s more prominent native Hawaiians, for example, has stated that: "Most of us consider this animal as sacred and [and that it] should not be touched or bothered… [The man responsible] was totally wrong and should have had a ‘stiffer’ sentence instead of a slap on the wrist. This person called me to ask if I would help him by testifying that the monk seal was not a aumakua (guardian angel). I scolded him for harassing the seal and informed him that the animal represented Kanaloa (the Hawaiian god of the sea). He is a fishermen and complained that the seal takes all the fish. I told him that it was too bad, and hung up out of disgust. His actions do not represent how Hawaiians treat these animals from the sea."

Following the August attack, a Volunteer Monk Seal Watch program was launched on Maui by the Hawaii Wildlife Fund and the state Department of Land and Natural Resources. Recently, the Watch has been monitoring an untagged female (there is speculation that this may be Q39’s mother) hauling out in the vicinity of a popular windsurfing beach at Paia on Maui’s north shore. The volunteers have been advising the public that Hawaiian monk seals need their distance, and that it is actually a federal offence to approach closer than 100 feet.

Where it comes to education, however, the volunteers may be faced with more than they bargained for. A representative from Hawaii Wildlife Fund, Hannah Bernard, was recently quoted in the Maui News as saying: "A lot of people want to chase the monk seals back into the water because they think it’s unnatural for them to be on the beach."

David Jordan dismisses the widespread praise he has received for his courage and persistence in exposing the attacks against Q39. He wishes instead that people would recognise the obvious dangers that still confront Q39, and all the other monk seals that might be tempted to visit or make their home on the main Hawaiian islands.

For all the words of encouragement he has received from the various branches of government, he is still waiting to hear what measures, if any, they intend to take to counter this threat.

 

Report to Congress

The U.S. Marine Mammal Commission’s Annual Report to Congress for 1998 paints a mixed, and often gloomy, picture of efforts to promote the recovery of the Hawaiian monk seal. For the uninitiated, the report is also illuminating in its criticism of certain government agencies, particularly where the defense of commercial interests may be jeopardising the future survival of Monachus schauinslandi.

The species is almost exclusively confined to the uninhabited reefs and atolls of the Northwestern Hawaiian Islands, and continues to decline despite – some might say because of – management efforts. From the late 1950s to the mid-1970s, colonies in the western reaches of the archipelago (between Kure Atoll and Laysan Island) declined by at least 60 percent, and the colony at Midway Island all but disappeared. It is thought likely that the decline was largely due to human disturbance caused by military and coast guard installations. By the mid-1990s, total monk seal numbers had stabilised at about 1,300 to 1,400 individuals. However, a significant decline in the colony at French Frigate Shoals is expected to slash those numbers.

According to the MMC report, the species’ decline can be attributed to "human disturbance, entanglement in derelict fishing gear, reduced prey availability, shark predation, natural environmental perturbations, attacks by aggressive adult male monk seals on females and immature seals of both sexes (called ‘mobbing’), and possibly disease."

The following relevant publications are available online in the Monachus Library:

Marine Mammal Commission. 1999. Annual Report to Congress 1998. 31 January 1999. i-xvi, 1-236. Chapter II – Species of Special Concern. Hawaiian Monk Seal (Monachus schauinslandi) 47-56.

NMFS. 1997. Hawaiian Monk Seal (Monachus schauinslandi). Stock Definition and Geographic Range. Revised 1 August 1997. National Marine Fisheries Service. http://swfsc.ucsd.edu/sars/HI_Monk.htm

For additional comment and analysis, see this issue’s Perspectives: The Old Woman Who Swallowed the Fly.

 

Vessel Spills Diesel Fuel Off Kauai

A fishing boat that ran aground off the Hawaiian island of Kauai on 10 April has broken up after being pounded by heavy seas. According to various press reports, the 95-foot Van Loi then proceeded to spill 16,000 gallons of diesel fuel into waters inhabited by endangered monk seals and marine turtles. The accident could not have come at a worse time for the NMFS, already at the brunt of criticism from the Marine Mammal Commission over its refusal to curb fishing activities at French Frigate Shoals.

Coast Guard crews were reportedly searching for thousands of hooked fishing lines laid by the Honolulu-based Van Loi before it ran onto a reef. A Coast Guard captain was quoted as saying that "There’s a lot of hooks, a lot of monofilament line that poses a risk to the wildlife there."

Fishing debris is regarded as a severe threat to Hawaiian monk seals, and in the wake of the accident it was reported that various types of gear, including floats, insulating foam and fishing nets, had washed ashore, reeking of fuel. At nearby hotel resorts, some tourists complained of nausea from diesel fumes, and were warned away from beaches.

In a separate news release, Reuters reported that the curiosity of one Hawaiian monk seal was complicating the clean-up operation. The animal was sighted in the vicinity of the stricken vessel on several occasions.

 

Native Hawaiians Speak Out

Native Hawaiian fishermen have expressed concern over the plight of starving monk seals at French Frigate Shoals, and may soon decide not to exercise their right to fish in the area.

A two-year lobbying campaign by the Native and Indigenous Rights (NIR) Advisory Panel to the Western Pacific Regional Fishery Management Council (WPRFMC) resulted in two government permits being issued to fish the Mau Zone, in the Northwestern Hawaiian Islands. These were intended to aid native fishermen, considered the most economically disadvantaged in Hawaiian society, through Community Development Programs.

But now, according to a recent news release, the NIR panel is "recommending that the two permits not be used until they are certain it will not contribute to the extinction of a Hawaiian Endangered Species... Information has recently come to their attention that the Hawaiian Monk Seal population has declined by approximately sixty percent during the last forty years."

The Mau Zone includes an area which encompasses Nihoa and Necker Islands, but falls just short of French Frigate Shoals, where a declining monk seal colony appears to be suffering from malnutrition. As indicated in our Perspectives article (The Old Woman Who Swallowed the Fly), the Marine Mammal Commission (MMC), a Federal Agency, has long expressed concern that overfishing might be implicated in the decline.

According to the NIR, the Marine Mammal Commission has been requesting a shut down of commercial fishing operations around French Frigate Shoals for five years. "From November 30, 1994 through December 31, 1998," it claims, "the MMC has sent at least eight letters to Mr. Rolland Schmitten, Assistant Administrator for Fisheries, requesting the commercial fisheries around French Frigate Shoals be closed to protect the Endangered Seals."

Claiming that "nothing has been done to address this issue", the Hawaiian members of the NIR panel have now announced that they are making a symbolic gesture towards the conservation of the monk seal by "requesting that any Hawaiian Community Development Group wishing to apply for the two Mau Zone permits wait until it can be determined to be safe for the Native Seals."

 

                                    

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