Five years after the Department of Land and Natural Resources was sued over its practice of indiscriminately awarding permits for aquarium fish collection, four years after the lower court ruling was challenged in the Intermediate Court of Appeals, and more than a year after the case was brought before the state Supreme Court, a group representing the interests of commercial aquarium fish collectors is only now wanting to intervene to protect what it says are the rights of its members.
The group, the Pet Industry Joint Advisory Council, jumped into the fray on September 12, when it filed a motion to be granted status as an intervenor-defendant. The filing was made just six days after the Supreme Court remanded the case back to the Circuit Court.
Under instructions from the Supreme Court, the lower court is to enjoin all commercial aquarium fish collection pending the DLNR’s compliance with the state’s environmental review law and also is to determine whether recreational as well as commercial aquarium collectors should be subject to the injunction.
The deputy attorney general represent- ing the DLNR, William Wynhoff, has filed a motion supporting the intervention.
Attorney Summer Kupau-Odo, with the Earthjustice law firm representing the plaintiffs, has filed a motion in opposition. “The Supreme Court remanded the case for entry of that injunction and we’re working to expedite that,” she told Environment Hawai‘i. As to the Pet Industry council’s efforts to intervene at this late date, she said: “The circuit court cannot review or alter the Supreme Court ruling. Their [the industry’s] intervention is moot. Aside from that, it’s too late.”
A hearing on the motions was scheduled for October 1 before Circuit Judge Jeffrey P. Crabtree.
‘A Constitutional Property Interest’
In its motion, the pet industry council argued that the current permit holders who would be affected by an injunction have a property interest in their permits and that to suspend them, even temporarily, would deprive them of their constitutional rights to due process. Representing the organization is the law firm of K&L Gates (among its other clients is the Hawai‘i Longline Association).
The group describes itself as a trade organization for the pet industry “whose members includes Hawai‘i fishers who currently hold aquarium collection permits issued” by the DLNR. According to its motion, “the council seeks to intervene in this action to [sic] as a party interested in the pet industry generally, in the ability of Hawai‘i fishers to continue to collect aquarium fish under their existing permits, and specifically to preserve the continued validity of its members’ already-issued aquarium collection permits, and its members right to renewal of those permits during the remedy phase of this litigation.”
Although the Supreme Court instructed the Circuit Court to issue an injunction against further commercial aquarium collection, the council argues that the lower court has discretion to determine the scope of the injunction. “While the Supreme Court determined that the issuance of commercial aquarium collection permits is an action that requires HEPA review and that some form of injunctive relief is appropriate, it did not and could not, issue an order as to the scope of any such relief,” it argued.
A broad injunction “will have a profound economic affect on all permit holders, none of whom were sued by plaintiffs and none of whom have previously participated in this action, even those plaintiffs specifically identified in their complaint. In short, if relief is shaped and ordered without the participation of the intervenor, the voices of the pet industry generally and the very commercial permit holders whose permits have been challenged by plaintiffs will not be heard despite the profound potential impact of these proceedings. Current permit holders have a constitutional property interest in the permits that have already been issued, the temporary enjoining of which would require individual due process notice and opportunity to be heard prior to revocation,” it stated.
As to the delay in its involvement in the case, the council argues that involvement at this point is indeed timely. “Timeliness of a motion to intervene is determined by looking at the totality of the circumstances,” wrote K&L Gates attorney Geoffrey M. Davis. In this instance, he added, “the council seeks to intervene with respect to the remedy portion of this case…; the council does not seek to relitigate the merits of the issues decided by the Supreme Court.”
The motion argues that the commercial aquarium permit holders represented by the council have “existing, legally cognizable property interest in, and a right to the use and renewal of those permits.”
“The time it takes for DLNR to conduct such a HEPA review is far from certain. In the meantime, if plaintiffs’ requested relief is granted, current holders of commercial collection permits [would be prevented] from collecting pursuant to those permits, potentially destroying their businesses. Moreover, permit holders whose permits are set to expire would be unable to renew their permits, again potentially destroying longstanding businesses in which individuals and Hawai‘i families have invested over many years,” Davis argued.
On September 15, deputy attorney general Wynhoff filed a short (less than two-page) memorandum supporting the council’s intervention. “This case … presents issues of major importance that affect personal, financial, and philosophical interests and concerns of many Hawai‘i citizens,” he wrote. “The state does NOT agree with all of intervenor’s arguments,” he continued. “But the state supports intervenor’s right to have those arguments fully and fairly considered by this court.”
The plaintiffs’ response to the motion to intervene was not as sympathetic as the state’s and, at 16 pages (excluding attachments) was far more expansive.
“Almost five years after this lawsuit was filed … Pet Industry Joint Advisory Council seeks to intervene as a defendant to interject defenses irrelevant to the matters the Supreme Court directed this court to address on remand,” wrote Kupau-Oda. “Now that a substantial remedy plaintiffs requested – a prohibitory injunction enjoining commercial aquarium collection – is about to take effect, PIJAC raises purported due process claims to challenge the injunction’s application to existing commercial permits.”
The motion to intervene now “would be pointless,” she argued, “as this court is not authorized to hold further proceedings addressing commercial aquarium collection – it cannot afford PIJAC the relief it seeks.”
“At bottom, PIJAC’s motion to inter- vene is a backdoor challenge to the Supreme Court’s decision, which this court legally cannot change,” she wrote.
— Patricia Tummons