Opponents of Aquarium Trade Appeal Decision Upholding BLNR Rejection of EIS

posted in: Fisheries, Marine, October 2020 | 0

Last May, the Board of Land and Natural Resources refused to accept an environmental impact statement that had been prepared by a private group seeking to reopen much of the west coast of Hawai‘i island to commercial aquarium fish collectors. In August, the Environmental Council upheld the board’s rejection of the document.

So why, on September 14, did a hui of individuals and groups that advocate for a ban on commercial aquarium fishing sue the council, the Land Board, and the private group that wants to see 10 individuals be issued permits allowing them to resume collecting reef fish?

Buckle up. It’s a long story.


The group that prepared the document and was seeking the permits on behalf of those individuals is the Pet Industry Joint Advisory Council, or PIJAC. Following the Land Board’s decision, it appealed to the state Environmental Council. In August, the council voted to uphold the board’s action. In its final decision, the council discussed the 14 reasons for the rejection cited in the Land Board’s formal order, holding them up against the legal standard of whether they were “arbitrary and capricious.” In most in- stances, the council determined that the BLNR’s reasoning was sound. In two cases, though, the council found that the BLNR’s reasoning was indeed arbitrary and capricious.

One of those was the board’s fourth reason to reject the EIS. The action proposed by PIJAC, the board suggested, would give a monopoly on the use of fine-mesh nets to ten individuals. The council, however, determined that the BLNR had no basis “to conclude that by approving the EIS, the 10 fishers that constitute the applicant” would enjoy such a monopoly since the board itself – and not the applicant – has the power to grant permits.

In its original order, dated August 13, the council appeared to agree with PIJAC when PIJAC, arguing against this particular finding, wrote that the EIS was for just 10 permits – but that nothing precluded the Land Board from issuing additional permits, provided those permittees would need to undergo their own environmental review process under state law. “The applicant does not have the authority to ban issuance of aquarium permits for any area,” PIJAC wrote.

In appearing to agree with PIJAC on this point, the council misquoted it, writing instead, in paragraph 93 of its order, that, “Applicant [PIJAC] is correct that BLNR [sic] has no legal authority to ban or prevent the issuance of aquarium permits.”

When the mistake was pointed out, the council substituted not the quote or paraphrased quote from PIJAC’s argument, as apparently was the initial intent, but rather the statement, “BLNR has limited authority to prevent the issuance of aquarium fishing permits.”

The Environmental Council determined that the board’s 11th reason for rejecting the EIS was arbitrary and capricious as well. In this case, the board found that the EIS did not adequately discuss scientific findings that supported claims that aquarium fishing harmed the environment, such as a 2003 study by Brian Tissot and Leon Hallacher. “The FEIS need not agree or disprove the negative findings, but it should discuss them,” the board stated. In response, PIJAC claimed the Tissot and Hallacher study was dated and that it instead relied on more current data.

The council agreed with PIJAC, stating, “It was appropriate for the applicant to use the more recent fish population data.”

The Current Lawsuit

On September 14, three individuals – Willie Kaupiko, his son Ka‘imi Kaupiko, and Mike Nakachi – and three groups – For the Fishes, the Center for Biological Diversity, and Kai Palaoa – appealed that decision in 1st Circuit Court.

The group, collectively calling itself the Kaupiko Hui, noted that it “generally supports the council’s decision to affirm BLNR’s rejection of PIJAC’s FEIS.” However, it objected to:

• The statement in the revised paragraph 93 that the Land Board has only “limited authority to prevent the issuance of aquarium fishing permits.” This claim, the hui stated through its attorneys at Earthjustice, “exceeds the bounds of the council’s legal authority and is legally invalid under the Hawai‘i Constitution, BLNR’s implementing statutes, and the Hawai‘i Supreme Court’s decision in Umberger v. Dep’t of Land and Natural Resources.”

• The council’s finding that the BLNR was arbitrary and capricious in its rejection of the EIS on the ground that it did not adequately discuss relevant negative findings, in paragraph 122 and Section XI of the council’s decision.

• The council’s denial of the hui’s request to intervene in the contested case the council conducted in hearing PIJAC’s appeal. The council ruled that the governing statute, Hawai‘i Revised Statutes Section 343-5(3), does not allow any intervention by a third party and, in any case, the council would consider the hui’s “extensive written comments” submitted on the EIS as well as to the Land Board in its May meeting. The council “finds that there is no additional information at this time that KH can provide other than what it has already provided.”

The Kaupikos are Native Hawaiians who reside in Miloli‘i, a tiny fishing village in South Kona. For more than 60 years, the complaint states, Willie Kaupiko “has fished the waters of West Hawai‘i in the traditional ways handed down from his father and grandfather. … The aquatic life and reef ecosystems that he depends upon to feed his family suffer direct harm from the aquariumtrade. … Mr. Kaupiko was also a plaintiff in the original litigation that led the courts to mandate environmental review of commercial aquarium collection under [the Hawai‘i Environmental Policy Act, or HEPA], has participated substantially in every step of the resulting HEPA processes … and made every effort to participate in the contested case at issue in this appeal.”

Ka‘imi Kaupiko, in addition to fishing, is a co-founder of a school in Miloli‘i “that teaches children about Hawaiian culture, fishing, and the ocean,” the complaint states. “The aquarium trade’s harmful extractive practices also affect his ability to educate his students about cultural practices that rely upon healthy reefs and fish populations.”

Mike Nakachi, also a Native Hawaiian, is a dive operator and founder of Moana ‘Ohana, which, the complaint says, “provides diving experiences to private individuals, with a focus on educating its clients about the Hawaiian philosophies of malama ‘aina and malama kai, i.e., caring for and nurturing land, ocean, and natural resources. Mr. Nakachi has noticed negative changes on the coral reefs where he dives due to the aquarium trade, including a marked decrease in the abundance and diversity of species and broken coral resulting form the trade’s harmful extraction techniques.”

As for the groups involved in the lawsuit, Kai Palaoa is an unincorporated association of Native Hawaiian religious and cultural practitioners, For the Fishes is a Hawai‘i-based non-profit whose executive director, Rene Umberger, was the lead plaintiff in the original litigation that led the courts to mandate environ- mental review of commercial aquarium collection, and the Center for Biological Diversity is a non-profit whose “long- standing interests in the health of marine ecosystems has included working to secure protections for species impacted by com- mercial aquarium collection.”

All the appellants had sought to participate in a contested case before the Environmental Council and all but Kai Palaoa were plaintiffs in the Umberger case.

The parties are asking the court to modify paragraph 93 “and declare that BLNR has discretion and authority to prevent the issuance of aquarium permits” under the Hawai‘i Constitution, HRS Section 188-31, and the Supreme Court’s ruling in Umberger; to modify paragraph 122 and declare that the BLNR “did not act arbitrarily and capriciously” when rejecting the EIS on the ground that it did not adequately discuss negative findings as to the impacts of aquarium collection on fish populations; reverse the Environ- mental Council’s decision to deny the plaintiffs the ability to intervene in the contested case proceeding; and stay the council’s order.

— Patricia Tummons

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