____. R.9. r-alcTil F1SH_ANCM*V1LDLIFE SERV L!$£TP&. P£:Z:?£?™_I U .1 'it _.. In Reply Refer To: f*-y ™.— *- Al FWS/RF . rs:s^"i_" . l.'t *» - Hr. Seichi Hirai Clerk of the Senate State of Hawaii \"t>^» v\* Hawaii State Capitol * 2 3 Honolulu. Hawaii 96813 Dear Hr. Hirai: This further responds to your April 20 letter transmitting a copy of Senate Concurrent Resolution No. 64 and Senate Resolution No. 257 of the Eighth Legislature of the State of Hawaii Regular Session of 1976 which request that the U.S. Fish and Wildlife Service give "serious consideration toward permitting the controlled harvest of the marine fishery resources of the Northwestern Hawaiian Islands." At the outset, let me assure you that the U.S. Fish and Wildlife Service is, in fact, giving serious consideration to the request of the State of Hawaii to permit commercial fishing within the boundari of the Hawaiian Islands National Wildlife Jtefuge. In this regard, the Resolutions correctly state that there has been a series of meetings between representatives of this Department and the State of Hawaii for the purpose of exploring possibilities of clarifying some of the uncertainties pertaining to the status of the submerged lands and waters surrounding those Northwestern Hawaiian Islands which are within the Hawaiian Islands National Wildlife Refuge. State representatives to these meetings have previously called to our attention the desire to permit commercial fishing within the refuge area, if possible. We have advised them, as we now advise you, that the Fish and Wildlife Service is agreeable to considering the prospe of commercial fishing within areas of the refuge upon certain conditions: (1) that there be established through scientific studie that there is, in fact, a harvestable fishery resource within the refuge, and (2) it must also be established that commercial harvest! of any such fishery resource is compatible with the preservation of all other resources within the refuge.

^Regional Director, Portland. Oregon Toward this end, we are currently working with your Fish and Game Department and representatives of the National Marine Fisheries Service to initiate a detailed study to furnish this necessary data. To our knowledge, no such scientific data presently exists. Upon the conclusion of this study, a final decision will be made concerning commercial fishing possibilities within the refuge. For clarification purposes, it might be helpful if we briefly summarized a few pertinent background factors. Your Resolutions accurately reflect that the initial creation of the Hawaiian Islands Reservation under Executive Order No. 1019 on February 3, 1909, was for the limited purpose of establishing a preserve and breeding grounds for native birds; subsequently, however, the Hawaiian Islands Reserve was re-designated as the Hawaiian Islands National Wildlife Refuge by * Presidential Proclamation of July 25, 1940, and pursuant to the National Wildlife Refuge System Administrative Act of 1966 (P.L. 89-669, Stat. 926, 16 U.S.C. 668dd), the Hawaiian Island National Wildlife Refuge became a part of the overall National Wildlife Refuge System. Under this system, the Fish and Wildlife Service is responsible for managing refuges in a manner which will provide protection and development of all wildlife resources within the National Wildlife Refuge System. Consequently, it is essential that any permissive activity within the Hawaiian Islands National Wildlife Refuge be consistent with this responsibility. Further, during the series of meetings already held by our respective representatives, it has been made clear that the Fish and Wildlife Service does not claim jurisdiction over all waters and submerged lands surrounding the Northwestern Islands. Our representatives have pointed out that our position concerning the boundaries of the refuge is, in general, as follows: 1. The mean lower low-water mark on the Islands of Nihoa, Meeker, Gardner Pinnacles and Lisianski. 2. For Pearl and Hermes Atoll, French Frigate Shoals, Laysan and Haro Reef, the boundaries extend to the surrounding barrier reefs and include the submerged lands and waters contained therein, as more particularly described in the proposed Memorandum of Agreement on this subject submitted to the Department of the Interior by letter of October 31, 1973, from then Acting Governor Ariyoshi. As to those islands in the first category above, the Fish and Wildlife Service makes no claim of jurisdiction over submerged lands and waters surrounding the islands concerned; consequently, those areas within the tradititional three-mile limit are within the jurisdiction of the State of Hawaii and may be administered as you see fit, as long as the activities have no detrimental effect upon the areas within the refuge. In this regard, if you do decide to permit commercial fishing In these waters, we would ask that you work with the local refuge manager for the Hawaiian Islands National Wildlife Refuge to insure proper protection for the refuge islands. As to the atolls and reef-lagoon areas within the second category, our representatives in the meetings previously mentioned have agreed to consider the possibility of opening certain areas within the refuge to commercial fishing. However, as previously mentioned, it has been our position that before any such determination can be made, we must have sufficient data upon which to base such a judgement—thus, the need for the currently proposed study.' We hope the foregoing satisfactorily responds to your Resolutions; but, if you have further questions, we would be pleased to provide whatever additional information you desire. Meanwhile, it is our hope that the meetings between our representatives will continue and that the necessary study can be rapidly concluded so that the refuge management objectives can be safeguarded and attained through the cooperation and assistance of the State of Hawaii and the Fish and Wildlife Service. Sincerely yours.

Director APPENDIX A

MESSAGE ^

FROM TI1K PRESIDENT OF THE UNITED STATES, TRANSMITTING A Treaty for the Annexation of the Republic of Hawaii to the United States, Signed at Washington by the Plenipoten- tiaries of the Parties, June 16, 1897. To Ike Scnatcjif the United States : I transmit herewith to the Senate, in order that, after due consideration, the constitutional function of advice and con- 'V :» sent may bo exercised by that body, a treaty for the annexa- tion of the republic of Hawaii to the United States, signed in this capital by the plenipotentiaries of the parties on the 4 16th of June instant. For the better understanding of the subject, I transmit, in addition, a report of the Secretary of State, briefly reviewing the negotiation which has led to this important result. The iiu <>rporation of the Hawaiian Islands into the body politic of the United States is the necessary and fitting sequel to the chain of events which from a very early period of our history has controlled the intercourse and prescribed the as- sociation of the United States and the Hawaiian Islands. The predominance of American interests in that neighboring ter- ritory was first asserted in 1820 by sending to the islands a representative agent of the United States. It found further expression by the signature of a treaty of friendship, com- •fl

488 APPENDIX

merce, and navigation with the king in 1826—the first inter- national compact negotiated by Hawaii. It was signally .-111- nouncedin 1843, when the intervention of the United States caused the British Government to disavow the seizure of the Sandwich Islands by a British naval commander, and to rec- ognize them by treaty, as an independent State, renouncing forever any purpose of annexing the islands or exerting a protectorate over them. In 1851 the cession of the Hawaiian kingdom to the United States was formally offered, and al- tho not then accepted, this Government proclaimed its duty to preserve alike the honor and dignity of the United States and the safety of the Government of the Hawaiian Islands. From this time until the outbreak of the war in 1861 the policy of the United States toward Hawaii and of the Hawaiian sovereign toward the United States was exemplified by continued negotiations for annexation or for a reserved commercial union. The latter alternative was at length ac- complished by the reciprocity treaty of 1875, the provisions of which were renewed and expanded by the convention of 1884, embracing the perpetual cession to the United States of the harbor of Pearl River in the Island of Oahu. In 1888 a pro- posal for the joint guaranty of the neutrality of the Hawaiian Islands by the United States, Germany, and Great Britain was declined on the announced ground that the relation of the United States to the islands was sufficient for the end in view. In brief, from 1820 to 1893 the course of the United States toward the Hawaiian Islands has consistently favored their autonomous welfare with the exclusion of all foreign influence save-our own, to th»-extent of upholding eventual annexation as the necessary outcome-of that policy. Not only is the union of the Hawaiian territory to the United States no new scheme, but it is the inevitable conse- quence of the relation stedfastly maintained with that mid- Pacific domain for three quarters of a century. Its accom- plishment, despite successive denials and postponements, has been merely a question of time. While its failure in 1893 may not be a cause of congratulation, it is certainly a proof of the disinterestedness of the United States, the delay of four APPENDIX 489 years having abundantly sufficed to establish the right and i the ability of the republic of Hawaii to enter, as a sovereign contractant, upon a conventional union with the United States, thus realizing a purpose held by the Hawaiian people and proclaimed by successive Hawaiian governments through some seventy years of their virtual dependence upon the benevolent protection of the United States. Under such cir- cumstances, annexation is not a change; it is a consumma- tion. The report for the Secretary of State exhibits the character and course of the recent negotiation and the features of the treaty itself. The organic and administrative details of incor- poration are necessarily left to the wisdom of the Congress, and I can not doubt, when the function of the constitutional treaty-making power shall have been accomplished, the duty of the national legislature in the case will be performed with the largest regard for the interests of this rich insular domain and for the welfare of the inhabitants thereof. WILLIAM McKixi.EY. ' EXECUTIVE MANSION, \ Washington, June 16, 1897.

THE PRESIDENT: The undersigned, Secretary of State, has the honor to lay before the President, for submission to the Senate, should it be deemed for the public interest so to do, a treaty signed in •|s the city of Washington on the i6th instant, by the undersigned ft and by the fully empowered representative of the republic of Hawaii, whereby the islands constituting- the said republic- an d all their dependencies are fully and absolutely ceded to the United States of America forever. It does not seem necessary to the present purpose of the undersigned to review the incident of 1893, when a similar treaty of cession was signed on February 14 and submitted to the Senate, being subsequently withdrawn by the President on the oth of March following. The negotiation which has culminated in the treaty now submitted has not been a mere resumption of the negotiation of 1893, but was initiated and 490 Al'I'liNDIX

has been conducted upon independent- lines. Then an abrupt revolutionary movement, had brought about the dethronement, of the late queen and set. up instead of the theretofore tuular monarehy a provisional government for the control and man- agement of public affairs and the protection of the public peaee, such government to exist only until terms of union with the United States should have been negotiated und agreed upon. Thus self-constituted, its promoters claimed for it only a ilt-f existence until the purpose of annexation in which it took rise should IK-accomplished. As time passed and the plan of union with the United Stub's became an un- certain contingency, the- organixation of the Hawaiian com- monwealth underwent necessary c'nungcs, the temp. >r;> :'<- character of its first Government gave place to a permanent scheme under a constitution framed by the representatives of the electors of the islands, administration by an e\c'Ul:ve council not chosen by suil'ru'.'.c, but self-appointed, was s:i< cecded by an elective and purhanu r.tary n'^iiiic, and the abil- ity of the new Cioveniment to hold —as the republic of Hawaii—an independent place in the family of sovereign states, preserving order at home and fulfilling international obligations abroad, has been put to the proof. Recogni/.cd by the powers of the earth, sending and receiving eny>vi;, en- forcing respect for the law, and maintaining peace within its island borders, Hawaii sends to the United States, not a com- V •*' mission representing a successful revolution, but the ac- fl credited plenipotentiary of a constituted and (irmly established sovereign state. However suilicient may have 1"-en tlu authority of: the commissioners with whom the United States Government treated in iS'i.i, and however satisfied the I'r,•si- dent may then have been ot their power to oiler the domain of the Hawaiian Islands to the United States, the fact remains that what they then tendered was a territory rather than an established Oovernment, a country whose administration had been cast down by a bloodless but complete revolution and a community in a state of political transition. Now, however, the republic of Hawaii approaches the United States as an equal, and points for its authority to hat APPENDIX

provision of Artiele 32 of the constitution, promulgated July •J4, iS'U. whereby— 1 hi- J'rrsi'lent. \vilh the approval of the cabinet, is hereby expressly allthor- , • .1 u. : <-:Mpo%vered to make a treaty ot politieal or commercial union be- ; «..-•:. •;!•_• republic of Hawaii and the United States of America, subject to the : :.' itn-iil :i n >•{. t he Senate. The present negotiation is, therefore, as has been said, not /t :ii'-re renewal of the tender of Hawaiian territory made in !.'•;<>",, but has responded to the purpose declared in the Hawaiian constitution, and the conferences of the plenipo- tentiaries have been directed to weighing the advantages of •.he political and the commercial union alternatively pro- posed, and relatively considering the scope and extent thereof. It soon appeared to the negotiators that a purely commercial union on the lines of the German Zollverein could not satisfy the problems of administration in Hawaii and of the political association between the islands and the United States. Such a commercial union would on the one hand deprive the Hawaiian Government of its chief source of revenue from customs duties by placing its territory in a relation of free exchange with the territory of the United States, its main market of purchase and supply: while on the other hand it would entail upon Hawaii the maintenance of an internal- revenue system on a par with that of the United States, or else involve- the orgar.i/atioii of a corresponding branch of our revenue service within a foreign jurisdiction. \Ve have had With Hawaii since t^rs a treat}1' of commercial union, which pr;u :i'-a!iy assimilates the two territories with regard to many of their most important productions, and excludes other naf.ons fn.ni enjoyment of its privileges, yet, altho that treat}- has outlived other less favored reciprocity schemes, its permanency has at times been gravely imperiled. Under such circumstances, to enter upon the radical experiment of a coinple'e commercial union between Hawaii and the United States as independently sovereign, without assurance of per- manency and wiih perpetual subjection to the vicissitudes of public sentiment in the two countries, was not to be thought of. 492 APPENDIX

Turning, then, to the various practical forms <>f political union, the several phases of a protectorate, an offensive ami defensive alliance, and a national guaranty, were passed in review. Tn all of these, the independence of the subordinated state is the distinguishing feature, and with it the assumption by the paramount state of responsibility without domain. The disparity of the relative interests and the distance, sepa- rating the two countries could not fail to render any form of protective association either unduly burdensome or illusory in its benefits, so far as the protecting state is concerned, while any attempt to counteract this by tributary dependence or a measure of suzerain control would be a retrograde move- ment toward a feudal or colonial establishment, alike inexpe- dient and incompatible with our national policy. There remained, therefore, the annexation of the islands and their complete absorption into the political SYS!cm of the United States as the only solution satisfying all the given conditions and promising permanency and mutual ;Louisiana by France, of Flor- ida by Spain, or of Alaska .by Russia, it is the more requisite when the act is not cession, but union, involving the complete incorporation of an alien sovereignty into the body politic of the United States. For this the only precedent of "tir politi- cal history is found in the uncompleted treaty concluded during President Grant's Administration, November 29, iS6<>. f»r the annexation of the Dominican Republic to the United States. Following that example, the treaty now signed by the pleni- potentiaries of the United States and the republic of Hawaii APPENDIX 493 reserves to the Congress of the United States the determina- tion of ail questions affecting the form of government of the annexed territory, the citizenship and elective franchise of its inhabitants, and the manner in which the laws of the United Stales arc to be extended to the islands. In order that this independence of the Congress shall be complete and unquestionable, and pursuant to the recognized doctrine of public law that treaties expire with the independ- ent life of the contracting state, there has been introduced, out of abundant caution, an express proviso for the determi- nation of all treaties heretofore concluded by Hawaii with for- eign nations and the extension to the islands of the treaties of the United States. This leaveS'Congress free-to deal with such especial regulation of the contract-labor system of the islands as circumstances may require. There being no gen- eral provision of existing statutes to prescribe the form of government for newly incorporated territory, it was neces- sary to stipulate, as in the Dominican precedent, for continu- ing the existing machinery of government and laws in the 1 lawaiian Islands until provision shall be made by law for the government, as a Territory of the United States, of the do- main thus incorporated into the Union; but, having in view the peculiar status created in Hawaii by laws enacted in exe- cution of treaties heretofore, concluded between Hawaii and other countries, only sueh Hawaiian laws are thus provision- ally continued as shall not be incompatible with the Constitu- tion or the laws of the United States or with the provisions of this treaty. It will be notked that express stipulation is made prohibiting the coming of Chinese laborers from the Hawaiian Islands to any other part of our national territory. This pro- vision was p •• iper and necessary, in view of the Chinese exclu- sion acts, and it behooved the negotiators to see to it. that this treaty, which in turn is to become, in due constitutional course, a supreme law of the land, shall not alter or amend existing law in this most important regard. Respectfully submitted. iH.i'ARTMKNT or ST.\TK, JOHN SHERMAN. l]'as/iint;ti>n, June 15, iS<)6. 494 APPENDIX

TEXT OF THE TREATY. The United States of America and the republic of Hawaii, • in view of the natural dependence of the Hawaiian Islands Ili upon the United States, of their geographical proximity there- to, of the preponderant share acquired by the United States and its citizens in the industries and trade of said islands, and of the expressed desire of the Government of the republic of Hawaii that those islands should be incorporated into the United States as an integral part thereof and under its sover- eignty, have determined to accomplish by treaty an object so important to their mutual and permanent welfare. To this end, the high contracting partu-s have conferred full powers and authority upon their respectively appointed plenipotentiaries, to wit: The President of the United States: John Sherman, Secre- tary of Staie of the United States. The President of the republic of Hawaii: Francis March Hatch, Lorrin A. Thurston, and William A. Kinney.

ARTICLE I. The republic of Hawaii hereby cedes absolutely and with- out reserve to the United States of America all rights of sov- ereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies; and it is agreed that all the territory of and appertaining to the republic of Hawaii is hereby an- nexed to the United States of America under the name of the Territory of Hawaii. ARTICLE II. The republic of Hawaii also cedes and hereby transfers to the United States the absolute fee and ownership of all pub- APPENDIX 495 lie, government, or crown lands, public buildings or edifices, ports, harbors, military equipments, and all other public prop- erty of every kind and description belonging to the Govern- ment of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining. The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition. Provided : that all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil; military, or naval purposes of the United States, or may be assigned for the use of the local government, shall be used solely for the beneiit of the inhabitants of the Hawaiian Islands for educa- tional and other public purposes.

ARTICLE III. Until Congress shall provide for the government of such islands all the civil, judicial, and military powers exercised by the officers of the existing government in said islands shall be vested in such person or persons and shall be exer- cised in such manner as the President of the United States shall direct, am'...he President shall have power to remove said i.iflicers and .ill the vacancies so occasioned. The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter con- cluded between the United States and such foreign nations. The municipal legislation of the Hawaiian Islands, not enacted for the fulfilment of the treaties so extinguished, and not in- oinsistent with this treaty nor contrary to the Constitution of the United States, nor to any existing treaty of the United 496 APPENDIX

States, shall remain in force until the Congress of the United States shall otherwise determine. Until legislation shall be enacted extending the United States customs laws and regulations to the Hawaiian Islands, the existing customs relations of the Hawaiian Islands with the United States and other countries shall remain unchanged.

AKTICI.V. IV. The public debt of the republic of Hawaii, lawfully exist- ing at the date of the exchange of the ratifications of this treaty, including the amounts due to depositors in the Ha- waiian Postal Savings-Bank, is hereby assumed by the (5ov- ernment of the United States; but the liability of the United States in this regard shall in no ease exceed §4.000,000. So long, however, as the existing Government and the present commercial relations of the Hawaiian Islands are continued, as herein before provided, said Ciovennnent shall cot. .;e !•, pay the interest on said debt.

AKTICLK V. There shall be no further immigration of Chinese into the Hawaiian Islands, except upon such conditions as are now or may hereafter be allowed by the laws of the United States, and no Chinese by reason of anything herein contained shall be allowed to enter the United States from the Hawaiian Islands. ARTICLK VI. The President shall appoint five commissioners, at least two of whom shall be residents of the Hawaiian Islands, who shall, as soon as reasonably practicable, recommend to Congress such legislation concerning the Territory of Hawaii as they shall deem necessary or proper. APPENDIX 497

ARTICLE VII. This treaty shall be ratified by the President of the United Stati:.-;, by and with the advice and consent of the Senate, on the "iir part; and by the President of the republic of Ha- waii, by and with the advice and consent of the Senate, in u

71 :\l I '* To: Chief, Division of onal Wildlife Refuges .dj IK$ / *From: Acting Branch Chief £$^"> iiif Subject: Concern Alert

This afternoon, Ed Smith from Portland Regional Office, called to advise that

Mr. Leo Ohai, a commercial fisherman from Honolulu, the skipper of the boat,

Libra, is planning to use commercial fishing methods at French grigit ShoTesT

He plans to pursesjfein within the refuge boundary in hopes to get eT'ofvFnnk He has announced his intentions in the Honolulu paper. From what I understand, our SAC, Mr. Jim Barkey would be meeting with him today to determine a number of

things. We would like to know whether or not Mr. Ohai is representing himself or a group of commercial fishermen. Apparently, the U.S. Attorney's Office might be willing to prosecute if it was a single fisherman, however, if it was a group of interested commercial fishermen, we might have some real serious problems.

The backgroud is that our refuge regulations prohibit the commercial fishing within

the boundary of the refuge. However, the boundary of the refuge extends to extremely deep water and there are some who will believe our boundary is not in deed legal out there. Lambertson is well aware of the legal problems regarding wilderness. Dick Eichhorn is also aware of these problems.

The purpose of this is simply to advise you that we may have a serious problem developing. If we cite the individual, we may not be able to make it stick. If we do not cite him, I am sure this incident will receive all kinds of publicity and we will see many of the fishermen up in the area.

It appears to me that this is the kind of thing for a regional director to act upon but the purpose of this memorandum is to simply alert you that we may have a serious problem developing. TO Regional Director, FWS, Portland, OR DATE: April

FROM Hawaii Administrator, FWS, Pacific Area Office, Honolulu, HI (HA)

SUBJECT: Saga of the Leewards

I r.ay have ~c-ntioned the tcng\:e lashing Brent Giexentanner took in behalf of the Service when he sat in for me at a recent Fish- eries Council meeting on Kauai. He was an invited guest arked to identify the "boundary and explain management of the Hawaiian Islands National Wildlife Refuse.

The attachment is an accurate exccrp from the minutes of that meeting. As Brent points out, what doesn't show through the printed record is the unbridled vcnon of the attack. I think Brent's esscccrnc-nt nay not have been far off the mark, because Mitch Takata called me when I returned to the office the follow- ing week and apologized for the "unnecessarily harsh" attack launched by Senator Yim. Takata further commended Brent for the calm manner he displayed in the face of the attack. (Brent's version is that he was too stunned to blink his eyes).

You may want to forward a copy of these minutes to Washington to be appended to the Concern Alert hand carried earlier by Bud Scfllck.

HKansenrpp

.CONSERVE ^AMERICA'S ENERGY

Save Energy and You Serve America! Tenth Meeting of the Council - Kauai Surf Hotel, flawiliwili MuTutes_pf the March 16 Session Opening. The session was called to order by the Chairman in the Destination Room of the Kauai Surf Hotel at 1:05 p.m. Nortne_rnv;esjtern Hawaiian Is_land^_J_u_rj_s_dictional Issues_. The Chairman called on Mr. J. Brent Giezentanner of the U.S. Fish and Wildlife Service, manager of the Hawaiian Islands National Wildlife Refuge, to speak on this subject. He briefly reviewed the history of the establishment and subsequent modifications of the refuge. The original Executive Order of 1909 referred rather vaguely to reefs end islets, including one v/hich had later turned out to be completely submerged, and tin's had led to differences of opinion over the boundaries. Agreements had nearly been reached by the Department of the Interior and the State under Governors Burns and Ariyoshi, but finally had not been signed because of the State's insis- tence on joint management authority. In general, the boundaries of the Refuge are held to be the outer fringing reefs, and these are also the boundaries of the proposed wilderness area on v/hich a Congressional committee recently held a hearing in Honolulu. The FWS might be prepared to open parts of the wilderness area to commercial fishing but feels that there should first be a study of the resources. This is presently being carried out in cooperation among the FWS, NMFS and the State, and the decision on the boundary is to be taken after the results of the study are known. The study is to focus on whether fishing is feasible, and what the impact of fishing on other resources would be. The Refuge has already been designated by the Secretary of Interior as a Research Natural Area, which legally means that the only activity permitted there is research. Regarding Tern Island, at French Frigate Shoals, where the Coast Guard will be closing its Loran station, Mr. Giezentanner stated that the FWS does not intend to restore the island to a wilderness condition. Some of the buildings will be retained as a research facility, fuel tanks wil ij^be kept and windmills will be installed. The airstrip will continue to be available for" emergency use, by fishermen and others, but there is no intention to allow the island to be used as a regular fishing base. The monk seals are beginning to use the island again, and the birds there must be protected too. Because of the birds, the airstrip is risky for use by large aircraft, but it will be all right for light twin-engined planes. The island will be available for scientific research by the University of Hawaii and others, and the Service plans to have a maintenance man there most of the year. The Chairman asked whether Mr. Giezentanner was aware that the State of Hawaii considers that it has a claim to the island and will seek its reversion, t'r. Giezentanner reviewed the history of the State's claim, as understood by the FWS. Mr. Fithian complimented Mr. Giezentanner on his clear presentation of the situation as his agency views it. He suggested that perhaps the Council might be a fourth party to the tripartite survey which is scheduled for the next five years in the Le-ov::-.rd Islands. The Chairman stated that members of the Council and fishermen v/ojld like to sc-e Tern Island r.ade available for fisheries use, not in a way that would disrupt the wildlife but as a supply point. He expected there would be a hc-ad-on confrontation on this question, as the State Govern-:c-nt is roving strongly on fishery development. He asked that the FWS try to understand this point of view. Mr. die;-on tanner said t,.ui. ,ie did understand it but hopeu that there would also • he understanding of his Service's concerns. Tern is an important island for f. b/mls^sea turtles and especially for the endangered Hawaiian r-onk seal, v/hich c r r< Jl .-.T-i--s t"nere on an important scale. The Chain:.an wondered whether the scebird populations were in need of such coniplete protection, recalling the great apparent abundance'of goony birds all over Midway Island. Mr. Gir-zentanner conceded that the birds are numerous on Midway but pointed out that they constitute about one-half of the total world population of Laysan albatross. Mr. Agard asked whether man and birds could not coexist on the other islands of the chain, as they seemed to do very well at Midway. Mr. Giezentanner explained that Tern Island is much smaller than Midway and that the seals rear their young at French Frigate Shoals to a i-rjch greater extent than at Midway. Mr. Agard noted that at such islands as Nihoa and N'ecker the claimed boundaries are at the low tide mark, and he wondered why Maro, or Mary's, Reef was included. Mr. Giezentanner explained that the Executive Order which originally established the Refuge had mentioned it by name. The Chairman reviewed the position that has been taken by the State Legislature against conversion of the Refuge to a wilderness area by H. R. 1907. Mr. Giezentann* said that the acreage mentioned in the bill as the area of the proposed wilderness was comprised only within the present boundaries of the Refuge. Mr. Fithian expressed the view that the Council, as a fourth party in the current survey, should get actively involved in determining the future of the Leeward Islands, because the waters around them constitute a large part of the Council's jurisdiction Mr. Giezentanner pointed out that the tri-partite arrangement is only for research, and he thought that it would be more appropriate for the Council to get involved after the results of the survey are in. Mr. Yoshida noted that word had just been received that the KMFS, in Washington, had signed the agreement covering the tri-partite study. The Chairman asked what the State administration's position is, and Mr. Ego stated that it holds that the submerged lands are all subject to State jurisdiction. He thought that Mr. Fithian's suggestion had merit, for although stock assessment was the main objective, management considerations were also involved. Dr. Swerdloff, Deputy Marine Affairs Coordinator of the State of Hawaii, pointed out that the original 1909 Executive Order had only purported to set up a bird preserve, but this had been subsequently broadened by successive orders of the Secretary of the Interior, some of which had been contested by the State. The result had been that the State had lost access to a large portion of its territory. Now the Marine Mar~al Commission was seeking to establish a 3-mile "critical habitat" for the monk seal, which could result in closing the territorial sea to fishing. The jurisdictional dispute was seen as a States' rights issue, and the Marine Affairs Coordinator's Office and its advisory council had recommended that the Governor take strong action on it. Some of the islands should be open to development -- it did not seem reasonable that a chain of islands extending n>ore than 1,000 miles should all require total protection. The State had not yet taken any legal action, as the issue of jurisdiction over the channel waters between the main islands had preempted its attention. There may be a question of compensation to the State, and the constitutionality of some of the actions that have been taken by the Federal authorities may be made an issue. The Coast Guard legal officer LCDR Michael Jacobs said that the Coast Guard has permits for its Loran station on Tern Island fro:n both the State and the Interior Deportment. V.'ith the station being closed, the Fish and Wildlife Service wants some structures removed which the State wants left standing; given this difference, the Coast Guard probably wi11 not touch the structures. Mr. Giezentanner recalled that the agreement betw'-en the F'.-'S and the Coast Gu.^rd states that structures will be rcrjved as "mutually agreeable , ar,d there is no doubt in the minds of F'u'S legal advisers as to the right to require removal. Senator T. C. Yim spoke in emphatic defense of the State of Hawaii's rights in the Leev/ard Islands and against the arrogation of exclusive authority in that part of the State by the Department of the Interior. He protested that it appeared that a guest had taken over in a house that belongs to the people of Hawaii. Recalling that the bird preserve v.'as first established when Hav/aii was in the status of a Territory, and when it was much less developed in every way than at present, he stressed that there is no longer any reason for the people of Hav/aii to be treated like second-class citizens. There is certainly no longer a need, if there ever was, for the Washington bureaucracy to send "experts" out here to tell us how to run things in our own islands. He meant to insist that the State Govern.--.ent prepare for an all-out struggle on this issue. He appealed to State officials to make plans for a campaign to reestablish the State's rights and promised that the Legislature would not stint on funds to hire the best legal talent available to help in the fight. There was no doubt in his mind that Tern Island should revert to the State, which could do a better job of managing the resources there, because it had at its disposal better scientific and managerial brains and would be willing to spend more money on the job than the present management authority. He favored a policy of multipurpose use of the land and v/aters wherever possible. The Senator rejected any and all vestiges of colonialisr and the concept that some Great White Father knov;s what is best for the islands. He warned that the day may not be far off when a Senator from Hawaii will be Chairman of the Appropriations Committee, and he was sure that on that day certain Federal officials would find it difficult to budget funds for coming to Hawaii to tell the people of the State how to manage their own affairs. The Senator's statement was roundly applauded. Dr. Mendelssohn pointed out that the Council has no authority over resources and activities within the 3-mile limit, and he reminded those present that the Mationa Marine Fisheries Service has a responsibility for enforcing the Marine Manual Protection Act. He also observed that Hawaii is not the only State which had had lands taken over for national parks, preserves and so forth. Senator Kuroda also spoke in favor of development of fisheries in the Leev/ard Islands area, referring to the current consideration in the Legislature for orderi development of a master plan for the State's fisheries. Senator Hara expressed support for Senator Yim's position in favor of State jurisdiction over the Leev/ard Islands. He also noted with approval the five-year program of resource assessment being carried out cooperatively by the National Marine Fisheries Service, the Stats and the Fish and Wildlife Service, considering that the inauguration of such a program should mark an appropriate time for reviewing the jurisdiction?.! situation Senator Hara expressed his feeling that attendance at the Council meeting had been a useful and enlightening experience. Mr. Howard suggested that the Council should put on the record its appreciation of the Senators' participation in the meeting, which v/as received with general approbation. Mr. ^prdallo, adverting to Dr. M^ic'el ssnhn' s remarks, thought t*Mt the Council shouV!\not try to limit its concei •'. to the areas outside the three-mile limit, • - - v>.-, ., L.... ,. +,. i,.,,i,.,in r™<;idrr,->fTu[-i of features United Lw^es Department of the

OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240

In Reply Refer To: FWS/RF FWS 30988

Mr. Wadsworth Y. H. Yee Chairman, Western Pacific Regional Fishery Management Council 1164 Bishop Street Room 1506 Honolulu, Hawaii 96813

Dear Mr. Yee: This responds to your January 18 letter to Secretary Andrus concerning the establishment of a Hawaiian Islands Wilderness comprising 303,936 acres, as proposed by Representative Udall in H.R. 1907 (95th Congress, 1st Session).

On January 5, 1974, former Secretary of the Interior Morton recommended to former President Nixon that 1,742 of the 1,769 acres on Hawaiian Islands National Wildlife Refuge above mean high tide be designated wilderness. In his letter to the President, the Secretary stated "...we believe that there is an ambiguity as to the precise extent of the refuge's legal boundaries in the order which established it. Essentially, the ambiguity centers on the question as to whether or not certain reefs serve as a boundary to the refuge...At present this issue is the subject of discussion among the Departments of Interior, State, and Justice and the State of Hawaii. We believe that the proper manner to proceed is to propose immediate wilderness designation of the undisputed emergent lands in the refuge and to revise this proposal if it should ultimately be determined that the United States has title to additional acreage." Section 5 of the draft bill transmitted to Congress says, in part: "...nothing in this Act shall be interpreted to prohibit the use of helicopters or small motorized boats in the area." This sort of lan- guage gives the Secretary of the Interior the opportunity to allow or restrict the use of "small motorized boats." Section 7 of the bill states: "Nothing in this Act shall be interpreted to prohibit the employment of such measures necessary to meet emergencies involving threatened species, accidental introductions of pest plants or animals or other jeopardies to the fragile ecosystem of the area designated as wilderness by this Act."

The above quoted information is presented to emphasize that the Department is interested in resolving the boundary ambiguities between the parties . involved rather than through Congressional action. The proposed legislation provides for the use of small boats within the wilderness, and for the Secretary to prohibit measures that would jeopardize the existence of a species or ecosystem (Section 7) of the Hawaiian Islands National Wildlife Refuge. We have high hopes that the tripartite agreement to assess the living biological resources of the Northwestern Hawaiian Islands will be the means by which a determination of suitable types and amounts of use of those resources can be made.

I'm sure you understand that the Secretary of the Interior has 'the obligation to protect those resources that are within his jurisdiction and are in the national interest to preserve, including endangered species. We understand and appreciate your concern, so well presented in your letter, about the fishery. (We did not find a copy of the Western Pacific Regional Fishery Management Council's resolution with your letter.) I am convinced that the wilderness proposal developed by the Department will provide the Secretary of the Interior with the options necessary to manage the resources under his jurisdiction in an appropriate manner, regardless of what the ultimate boundary of the refuge may be. Therefore, we await the data from the resource assessment, anticipating that it will, along with existing information, prove adequate to make the proper decisions for management and utilization of the resources. We appreciate the Western Pacific Regional Fishery Management Council's interest in this matter, and solicit your continued input and concern.

Sincerely yours,

Assistant Secretary for Fish and Wildlife and Parks