New & Noteworthy: Aquarium Collection, Maha`ulepu Cases

posted in: December 2017 | 0

Aquarium Collection Update: On September 6, the Hawai`i Supreme Court justices issued a unanimous ruling that the Department of Land and Natural Resources had to complete an environmental study of the effects of aquarium fish collection before issuing permits sanctioning the practice. The ruling remanded the case to the 1st  Circuit Court for further actions consistent with the court’s ruling.

Judge Jeffrey Crabtree was slow to issue an order to enforce the high court’s decision, prompting the plaintiffs in the case — four individuals and three non-profit organizations — to file a writ of mandamus with the Supreme Court to force Crabtree’s hand. That writ was eventually denied as Crabtree, on October 27, issued an order declaring existing aquarium-collection permits to be illegal and invalid.

The lower court had been expected to decide whether the collection of aquarium fish for non-commercial purposes required environmental review as well. Instead, Judge Crabtree allowed a group representing the commercial collectors to intervene in the case – and that group, the Pet Industry Joint Advisory Council – last month filed a motion asking the judge to stay enforcement of his order. A hearing on that motion was set for November 30.

The motion for stay indicates that the council intends to appeal the judge’s order on the grounds that its members have suffered an unconstitutional taking of their means of livelihood, will be irreparably harmed if it is not stayed, and have had their due process rights violated. The “balance between harm to fishers, which is very real and happening now, and harm to fish, which is unsupported by science and may never occur, strongly favors a stay,” the council argued in its motion.

In addition to the stay, the council is asking the judge for a final judgment, since without that, the council “cannot appeal the court’s resolution of [the plaintiffs’] claims.” And if Crabtree does not grant that request, the council asks that he “grant PIJAC leave to file an interlocutory appeal.”

Maha`ulepu Award: The Friends of Maha`ulepu, whose federal Clean Water Act complaint against the Kaua`i dairy owned by Ulupono Initiative resulted in a consent decree last May, has been awarded more than half a million dollars in fees for attorneys and expert witnesses as well as court costs.

The Friends filed their complaint in June 2015. Following the consent decree, the group sought to recover costs. On November 13, U.S. Magistrate Judge Kenneth Mansfield entered his order. Although he discounted the hourly fees sought for many of the individuals on the plaintiffs’ legal team, the reimbursement for their attorney fees still came to nearly $407,000. An expert witness for the Friends was awarded more than $79,000. Costs associated with the litigation were set at just over $20,000.

The dairy had argued against the award of costs, arguing that the settlement was, in fact, a “nuisance settlement” and that the plaintiffs’ success was “de minimis.” The court rejected this.

Among other things, the consent decree requires the dairy to give $125,000 to the Makauwahi Cave Reserve to support its work. It also bars the dairy from any land disturbance activities that might result in runoff.


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