In 2024, the Native Hawaiian Legal Corporation (“NHLC”) represented Mogul Luʻuwai and the Lu‘uwai ‘Ohana in the process of obtaining a Special Use Permit for the practice of their traditional cultural fishing in Honuaʻula, Maui.   

Mogul and the Luʻuwai ‘Ohana come from a long line of traditional Hawaiian lawaiʻa and are one of the few Hawaiian fishing families that has continued to reside in the Mākena area since at least the mid-1800s. Over generations, the ʻOhana has acquired specialized, place-based knowledge and skills specific to Mākena and its unique environment. These multigenerational practices were interrupted with the establishment of the ‘Āhihi-Kīna‘u Natural Area Reserve (“AKNAR”) in 1973.

In 1973, the State of Hawai‘i established the Natural Area Reserves System (“NARS”) to preserve and protect Hawai‘i’s unique ecosystems and designated over 1,238 acres of land and waters near Mākena to become AKNAR. The Natural Area Reserve System, as well as the AKNAR, was established before the 1978 addition of article XII, section 7 to the state constitution and without consideration of impacts to Native Hawaiian traditional and customary practices. Within NARS-designated areas, the State applies numerous special rules and management activities intended to protect the native ecosystems. With the establishment of AKNAR, which prohibited the take of fish and wildlife within the Reserve, the Luʻuwai ʻOhana’s place-based fishing practices were made illegal.

In 1997, brothers Rudolph “Boogie” and Robert “Bobby” Luʻuwai, with NHLC as their counsel, applied to the Department of Land and Natural Resources’ (“DLNR’s”) Division of Forestry and Wildlife (“DOFAW”) for a Special Use Permit to practice traditional cultural fishing within the boundaries of the Reserve. The NARS Commission, which serves in an advisory capacity for the Board of Land and Natural Resources (“BLNR”), then established an advisory working group to develop guidance regarding the application and the accommodation of the ʻOhana’s constitutionally protected traditional and customary rights within the Reserve.

The working group shared its findings in an October 1998 report, The Question of the Perpetuation of Traditional and Cultural Fishing Practices, ʻĀhihi-Kīnaʻu Natural Area Reserve, which proposed a special permitting process for traditional cultural fishing. The working group emphasized that the permitting process should allow for traditional cultural fishing, not subsistence fishing, to allow the Lu‘uwai ‘Ohana to pass on their knowledge and protect their traditions and customs from being lost. The working group proposed narrow eligibility requirements for the permitting program.

Informed by the 1998 report, the NARS Commission recommended BLNR approve the Luʻuwai ʻOhana’s permit application with numerous conditions, including restricting fishing frequency to four times per year; imposing specific catch limits for fish and other natural resources within the Reserve; and requiring that practitioners monitor resources within the Reserve and report their findings to DOFAW. The Lu‘uwai ‘Ohana agreed to those and additional conditions, further limiting the scope of their rights, including that a special use permit is valid only for one year from the date of issuance.

BLNR unanimously voted to approve the 1997 permit application. Doing so allowed the State to fulfill its affirmative duty to protect traditional and customary practice rights while also fulfilling its duties to the management and protection of the Reserve as a public trust resource. 

In March 2023, Mogul, on behalf of the Lu‘uwai ‘Ohana, submitted a Special Use Permit application for traditional cultural fishing within AKNAR, which proposed terms and conditions consistent with the 1998 working group Report and past permit approvals. In October 2023, the NARS Commission, however, initially recommended denying Mogul’s application, expressing concerns that the State cannot allow any levels of take in the Reserve, even if for traditional and customary purposes.

The Lu‘uwai ‘Ohana and DLNR staff met several times over the following months to reach a compromise on permit terms and conditions that would be acceptable to the NARS Commission. The Lu‘uwai ‘Ohana agreed to terms and conditions that were similar to those of past permits, but with significantly lower take limits. In June 2024, the NARS Commission voted to recommend that BLNR approve the Luʻuwai ʻOhana’s Permit application, with the agreed upon terms and conditions.

The Permit then went before BLNR for decision making on August 9, 2024. The Board acknowledged that the Lu‘uwai ‘Ohana lived in ‘Āhihi-Kīnaʻu long before the existence of the NAR. The Board discussed with DLNR staff the State’s obligation to balance the protection of the ʻOhana’s Native Hawaiian traditional and customary rights with the regulation and management of the Reserve, which is generally a “no take” zone. BLNR concluded that under the proposed permit, the ʻOhana may continue their practices, which include stewardship of ‘Āhihi-Kīnaʻu, and they would not jeapordize the Reserve’s resources.

Members of the Lu‘uwai ʻOhana testified in support of their permit approval and explained the permits’ significance to their ‘ohana and Honua‘ula. They shared about their history of working with the State to protect and preserve their fishing practices as well as the natural resources upon which their practices rely.

Mogul Luʻuwai explained,  

“Continuing the fishing traditions of our kūpuna in ʻĀhihi-Kīnaʻu is important to strengthen our connection to the ʻāina and kai, which is central to our unique identity as Kānaka Maoli. Perpetuating our traditions is also why my family thought I should be the lead applicant for the permit: to symbolize passing the torch of knowledge from one generation to the next and also so I, as part of the next generation of lawaiʻa of Honuaʻula, can learn how to advocate for our traditional and customary rights within the administrative process as my grandfather, uncles, and father did back in the 1990s.” 

NHLC testified in support of the Permit approval, underscoring that State regulation of Native Hawaiians’ rights must be “reasonable,” which at minimum means the State cannot regulate traditional and customary practices out of existence. NHLC urged BLNR to fulfill its about dual constitutional obligations under Article XI, § 1 and Article XII, § 7 by approving the Lu‘uwai ʻOhana’s permit.

The Board commended the Luʻuwai ‘Ohana’s decades-long efforts to work with the State to ensure the protection of both their traditional cultural practices and ‘Āhihi-Kīnaʻu. After discussion, the Board unanimously voted to approve the Luʻuwai ʻOhana’s Special Use Permit.

Kaulu Lu‘uwai, on behalf of the Lu‘uwai ‘Ohana, has expressed:

“NHLC has protected our ʻohana’s traditional and customary fishing rights for three generations and counting. While we worked with the agency over 30 years ago to create a permitting process that attempted to balance our fishing traditions with Western understandings of conservation, recently modern challenges made renewing our permit more difficult. We really leaned on NHLC’s expertise to interface with the agency in what felt like an uphill battle. In the end, NHLC armed itself with the law and helped us to secure our permit so these place-based fishing practices that have been perpetuated in our ʻohana for over 100 years can continue to be passed down to future generations.”

Counsel for Mogul Lu‘uwai and his ‘ohana at Native Hawaiian Legal Corporation included Terina Fa‘agau and Kirsha Durante.  Former NHLC attorneys Alan Murakami and Nahoa Lucas represented Rudolph and Robert Luʻuwai in the process of obtaining approval of the Luʻuwai ʻohana’s original 1997 Special Use Permit application.