Aquarium Industry Group Loses Effort to Stay Fishery Injunction

posted in: January 2018 | 0

On December 4, 1st Circuit Judge Jeffrey Crabtree denied a motion by the Pet Industry Joint Advisory Council (PIJAC) seeking a stay of his October 27 order halting the collection of marine life for the aquarium trade until an environmental assessment or impact statement is conducted.

In a November 8 motion, attorneys for PIJAC claimed that Crabtree’s order — which merely implemented an earlier ruling by the state Supreme Court that all commercial aquarium collection permits issued by the Department of Land and Natural Resources were illegal and invalid — “caused, and is causing, devastating harm to participants in Hawai‘i’s commercial aquarium fishery.”

O‘ahu resident John Fernley’s aquarium fish store, for example, is 40 to 50 percent dependent on locally sourced Hawaiian saltwater fish collected by five local divers, “none of whom can fish after the Court’s October 27 ruling,” the motion stated.

“Without these fish, Mr. Fernley says he will ‘be out of business and will have to lay off [his 12] employees.’ As he says, ‘closing my business of over 40 years would cause immense hardship for not only me and my family, but also my employees and their families, as well.’ Given the length of time Mr. Fernley has been in the tropical fish business and his advanced age, he would likely be unable to find another job. It is virtually inevitable that he will lose his business and, therefore, his home as a result of the court’s October ruling,” it stated.

Kailua-Kona aquarium collector James Lovell, “a single father with a teenage daughter and another child who is in college, … will be unable to pay his bills, including his mortgage. He will be forced to sell his aquarium collection equipment and deplete his savings, making it nearly impossible for him to start over after the Hawai‘i Environmental Policy Act review is complete,” the motion continued, adding that hundreds of others in the aquarium fish trade will “suffer very real and very acute harm.”

The group’s attorneys argued that the aquarium collection permits, good for one year, issued by the DLNR’s Division of Aquatic Resources conveyed constitutionally protected property rights and that any decision to not renew them would require cause and a hearing. Crabtree’s order preventing any permit renewal, therefore, violated the U.S. Constitution, they argued.

“No due process has been afforded here, and no just compensation has been offered or provided. Thus, regardless of what the court, plaintiffs, and even the Supreme Court may believe state law requires, federal law explicitly prohibits actions required by the court’s October 27 order. Under the Supremacy Clause of the United States Constitution, federal law must prevail,” the motion stated (emphasis in original).

Should Judge Crabtree decide not to grant a stay, PIJAC asked that he allow the group to appeal directly to the Hawai‘i Supreme Court.

In their memorandum in opposition to the motion, attorneys with Earthjustice, representing plaintiff Rene Umberger and others, argued that PIJAC’s members have “no property interest in voided permits, no property right in public trust resources, and therefore were not entitled to due process prior to the injunction.”

“Aquarium fish collection permits … are discretionary permits, which means the state could deny issuance or renewal at any time,” they added.

Any harm to PIJAC’s members’ financial interests are not irreparable and the public has long suffered due to the commercial capture of fish and other wildlife “in unlimited numbers,” they continued.

“PIJAC does not, and cannot, articulate how allowing a small group of individuals to continue to illegally extract public reef resources in unlimited numbers, for private profit, serves the public interest. … The industry can bear — indeed, it owes it to the public to bear — temporary economic inconveniences for the next several months while DLNR and commercial collectors complete the environmental review they refused to complete earlier,” they wrote.

After hearing oral arguments on December 4, the judge denied PIJAC’s motion, noting that the court’s October 27 order is merely “implementing what the Hawai‘i Supreme Court already ruled,” hearing minutes state.

“There is nothing that this court is aware of in the rules of interlocutory appeals that permits the trial court to send this issue back to the Hawai‘i Supreme Court when the trial court implements exactly what the Hawai‘i Supreme Court ordered the trial court to do, and finds no support to send this case back to the Hawai‘i Supreme Court at this time,” the minutes state.

Crabtree also found that PIJAC was not likely to prevail in its arguments that due process had been violated.

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