On May 22, after hours of public testimony and a long executive session to discuss legal matters, the Board of Land and Natural Resources unanimously voted to deny a recommendation from the Department of Land and Natural Resources’ (DLNR) Division of Aquatic Resources to accept a final environmental impact statement (FEIS) for aquarium species collection in West Hawai‘i.
The Virginia-based Pet Industry Joint Advisory Council (PIJAC) released the document on April 13. Its preferred alternative was the issuance of aquarium collecting permits for the West Hawai‘i Regional Fishery Management Area to 10 unnamed fishers.
In September 2017, the Hawai‘i Supreme Court found in Umberger v. Department of Land and Natural Resources that the department had improperly issued dozens of aquarium collecting permits over the years without ever assessing the industry’s environmental impacts. In accordance with that ruling, the 1st Circuit Court issued an order in October 2017 invalidating all aquarium collection permits and requiring that an environmental review under the Hawai‘i Environmental Policy Act (HEPA) be done before the department issued any more.
The decision effectively ended all aquarium species collection in the West Hawai‘i Regional Fishery Management Area. Under the DLNR’s administrative rules, an aquarium collecting permit is required to fish there.
Across the rest of the state, however, the DLNR has continued to allow the collection of aquarium species for fishers holding a commercial marine license, which is required for the commercial catch of any species within state waters. The department has taken the position that aquarium species collection is permitted so long as fine-meshed nets — the gear universally employed in the industry — are not used.
Some of the plaintiffs in the lawsuit that spurred the current ban filed a lawsuit in January against the DLNR’s use of what it sees as a legal loophole for the aquarium collecting industry. On June 24, the 1st Circuit Court will hold a hearing on a motion for summary judgment on the complaint filed by Willie and Ka‘imi Kaupiko, Mike Nakachi, Free the Fishes and the Center for Biological Diversity.
The outcome of that case may impact the demand for aquarium fish from West Hawai‘i, should an FEIS ever be approved and permits issued for the area. In the meantime, the board was under pressure to either accept or reject the FEIS for West Hawai‘i permits at its May 22 meeting. Otherwise, under DLNR rules, the document would be deemed automatically accepted.
When it came time for the Land Board to vote, board members expressed their concerns with what seemed to be a lack of or possible misuse of information in the document.
What’s more, for the 10 proposed West Hawai‘i permits, PIJAC proposed just a single special condition: a daily bag limit of five for Achillles tang, one of a number of collected species in the region whose population is declining.
Under the department’s rules, 40 different species may be collected for aquarium purposes. “The fact that there are really no limits on the number of fish to be taken is very challenging. I don’t know how you analyze impacts when you don’t know how many fish will be taken out,” board chair Suzanne Case said in explaining why she was voting to reject the FEIS.
She and other board members also worried about the possible effects of removing a whole suite of herbivores that could help corals recover from the damaging effects of climate change. That, Case said, “is something that really needs much deeper review.” Finally, she complained that there just isn’t adequate, local data sufficient for a statistical analysis of impacts of removing the fish.
The lawsuit plaintiffs applauded the board’s decision. “This is a huge win for me and my family, and for our way of life,” Willie Kaupiko said in a press release. Both Kaupikos, father and son, are subsistence fishermen from Miloli‘i, where aquarium collection is prohibited but happens nonetheless, they say.
Earthjustice attorney Mahesh Cleveland added, “The law demands that the environmental review process fully and publicly examine the effects of a proposed action, rather than simply justify and rationalize a predetermined outcome. Fortunately, the board asked the right questions, listened to what the public had to say, and correctly applied the law to the decision before it.”
‘Right Questions’
One of the first questions Land Board member Chris Yuen asked regarding the proposed permits was, “Can they ramp up?”
The FEIS found that based on catch data from 2000-2017, the likely annual catch would equal 1 to 2 percent of the populations of the aquarium fish species around Hawai‘i island. That rate of catch, the authors argued, was sustainable.
But suppose Disney came out with a movie about the kole (Goldring surgeonfish) and everybody then wanted a kole in their tank, Yuen said. “We don’t know the level of catch by species that would ultimately be allowed if this FEIS is granted and we don’t really have that analyzed,” he said.
To this, PIJAC’s attorney James Lynch said that the EIS only needs to consider reasonably foreseeable actions. “We’re not required to analyze an asteroid striking the earth,” he said.
Even so, Yuen said that there was nothing to prevent the permittees from increasing their catch level or shifting their target species, other than the proposed Achilles tang bag limit.
Since PIJAC had proposed that limit, board chair Case asked why the FEIS didn’t also propose limits on the permittees’ overall catch based on their historical catch.
“If there is a rational basis to do so … that’s possible. We’re trying to balance conservation with the practicalities, trying to avoid unnecessary constraints,” Lynch replied.
“So you’re saying that we can rely on their historical catch rates as our guarantee, without putting any limits?” Case asked.
Lynch replied simply, “You cannot be arbitrary and capricious in putting limits on these permits. … They need maximum flexibility to catch fish consistent with conservation.”
Poor Data
The FEIS concedes that when the full range of impacts to collectable aquarium species in West Hawai‘i are considered (e.g., recreational aquarium collection, non-aquarium commercial fishing, recreational fishing, tourism, climate change), there is a significant cumulative impact to some of those species. However, it continues, the proposed 10 permits would be an insignificant contributor to that effect.
Population declines in 12 of the fish species in the area “are occurring in both areas open and closed to commercial aquarium fishing for all but one species, indicating that aquarium collection is not driving the decline,” it states.
With regard to climate change, the FEIS states that based on studies of the Great Barrier Reef, “fishing pressure had minimal effect on [coral] bleaching.” It goes on to note that on Hawai‘i island, the total cover of hard coral decreased between 2003 and 2017 in both protected and open areas, with the smallest decline seen in open areas. “Given that open areas did not see a more severe decline than areas closed to commercial aquarium collection, it is anticipated that commercial aquarium collection has a less than significant impact on coral declines,” the FEIS states.
In written testimony, Greg Asner, Shawna Foo, Roberta Martin, and Rachel Carlson with the ASU Center for Global Discovery and Conservation Science in Hilo, argued that the FEIS failed to adequately assess the environmental costs of the proposed activity.
In relation to climate change, they argued that the FEIS’s curt discussion of the aquarium fish species that are herbivorous was a substantial oversight. “Herbivores are the critical maintainers of coral-algal dynamics and are key in promoting reef calcifiers (e.g. Scleractinians and crustose calcifying algae) over fleshy macroalgae. This, in turn, is paramount for reef recovery after bleaching events, especially important for Hawai‘i which is still recovering from the 2014-2015 and 2019 bleaching events,” they wrote.
They noted that nine of the top 10 collected aquarium fish species in Hawai‘i are herbivores and represent 97.7 percent of total aquarium catch in 2017.
Even though the FEIS states that data from the DLNR’s Division of Aquatic Resources shows that herbivore biomass in West Hawai‘i has not changed since 2003, the ASU scientists pointed out that the data came from just eight sites and “is not at all representative of the entire west coast of Hawai‘i Island.”
They also argued that the FEIS failed to acknowledge the impact of ocean warming on the fish themselves, which will likely experience physiological stress during heat waves. “[T]heir ability to recover following a heat wave depends on levels of human disturbance. Elevated water temperature also negatively impacts coral reef fish reproduction where we can expect to see much lower recruitment rates with ongoing climate change,” they wrote.
The scientists also took issue with the purported minimal impact the aquarium collecting would have on the island’s fish populations. As the basis for determining that the permittees’ catch would be less than 2 percent of the populations of any of the fish species to be collected, the FEIS used a population estimate for the entire island provided by the National Oceanic and Atmospheric Administration.
To this, the ASU group argued, “The use of island-wide population estimates to evaluate impact is only appropriate if larval connectivity around the island is absolute, which is not the case.
In reality, numerous publications indicate only minor connectivity between East and West Hawai‘i, and within these regions, ephemeral ocean features concentrate larvae in some areas more than others.”
The scientists and other public testifiers also criticized the use of a 2006 report on aquarium fish species in the Philippines to arrive at sustainable catch rates on Hawai‘i island.
The FEIS authors cited a lack of data on Hawai‘i species to determine sustainable catch rates for the species collected in the local industry as their reason for using the Philippines paper. That paper, the Marine Aquarium Trade Coral Reef Monitoring Protocol data analysis and interpretation manual by Domingo Ochavillo and Gregor Hodgson, determined that between 5 and 25 percent of the populations of dozens of species could be sustainably removed from the reef.
“Successful management and rebuilding of depleted fish populations has been achieved at local scales but requires solutions tailored to the local context. Thus, using a manual that is based on species in the Philippines is not the best way to determine whether aquarium collection catch rate is sustainable, especially as this rate will be specific for each species,” the ASU scientists wrote.
The Motion
Before public testimony closed, Earthjustice attorney Cleveland informed the board that even if it accepted the FEIS, a decision on permits could not happen right away. The October 2017 Circuit Court order stated that the DLNR could not issue any aquarium fishing permits without an order from the court affirming that doing so would comply with HEPA, he said.
“The court will be paying very close attention to what you do here,” he said before urging the board to reject the document.
In the end, board member Yuen moved to do just that, saying the FEIS failed to adequately describe the proposed action.
It assumed that the historical catch data from the 10 would-be applicants was sufficient to project the future limits of the fishery. “I don’t find that convincing,” Yuen said, adding that those fishers could later shift the species they target or increase their catch.
He also cited the issues raised in the letter by Asner and his colleagues, particularly with respect to herbivores and climate change, as well as the criticisms over the use of the Philippine manual’s “sustainable” catch rates of 5 to 25 percent in combination with recreational and illegal take.
Board member Sam Gon, who seconded the motion, said he agreed with many of Yuen’s statements. “Inadequacy of the description of the project goes hand-in-hand with the non-disclosure of the applicants,” Gon said, adding later, “We received credible testimony today of the flawed interpretation of data.”
Gon also said he agreed with public testimony that there had been insufficient consideration of cultural impacts. A number of testifiers noted that 50 of the 52 native Hawaiians consulted in the FEIS’s Cultural Impact Assessment (CIA), had expressed misgivings about the aquarium trade. “There was a lot of very eloquent statements [in the CIA] by a number of highly respected practitioners in West Hawai‘i,” Gon said.
Despite their overwhelming sentiment, the CIA concluded that because the issuance of the permits wouldn’t significantly affect the fish populations or their habitat, there would also be no cultural impact.
After the board voted unanimously to reject the FEIS, chair Case stated in a press release that the vote reflected the board’s view that “the aquarium fishers’ proposal, without meaningful limits on future catch, without enough attention to our highly depleted stocks like paku‘iku‘i (Achilles tang) and other low-number species, and without adequate analysis of the near-future effects of climate change, ocean warming and coral bleaching on our reefs, did not adequately disclose the potential environmental impacts of the proposed ten permits.”
— Teresa Dawson
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