Lawsuit Seeks to Close ‘Loophole’ Allowing Aquarium Fish Collection

posted in: Fisheries, Marine, October 2020 | 0

More than three years ago, the Hawai‘i Supreme Court issued its ruling in a case that many observers thought would halt commercial aquarium fish collection, at least for a time. The high court determined in Umberger v. Dep’t of Land and Natural Res. that any permits that the Department of Land and Natu- ral Resources issued pursuant to Hawai‘i Revised Statutes Section 188-31 could not be valid until the department complied with the Hawai‘i Environmental Policy Act (HEPA), requiring an environmental impact statement or environmental assessment describing the effect of the practice on the human and natural environment.

The high court remanded the case to the 1st Circuit Court, which then enjoined the department from issuing or renewing permits issued under this statute until it satisfied the high court’s order.

But the practice continued across the state, except for West Hawai‘i, where special rules effectively ban commercial aquarium fish collection by requiring collectors to hold permits issued under HRS § 188-31.

How could it do this?

By its title – “Permits to take aquatic life for aquarium purposes” – HRS § 188-31 would seem to govern commercial aquarium fishing. However, the state continued to issue permits for commercial aquarium fishing under HRS § 189-2, “Commercial marine license” (CML) and claimed that so long as fine-meshed nets were not used to collect fish, there was no need to further restrict the trade.

According to the DLNR’s own statistics, in the period from January 2018 to October 2019, nearly half a million marine animals were taken for aquarium purposes by individuals issued CMLs.

In January, the state was sued once again by some of the same individuals who were plaintiffs in Umberger in an effort to close what they see as the DLNR’s exploitation of a loophole in its use of a different section of the law to allow aquarium collection to continue.

In a motion for summary judgment in that case, filed in May, Earthjustice at- torneys argue that this loophole is flawed and that under Umberger, the same HEPA review is required under HRS § 189-2 as the high court required for 188-31.

“DLNR’s brazen end-run around the court’s order is unlawful for three separate yet complementary reasons,” attorney Mahesh Cleveland wrote. “First, all commercial aquarium collection, regardless of the equipment types used, requires a § 188-31 aquarium permit and, thus, must comply with HEPA and this court’s order. Second, based on the reasoning the Hawai‘i Supreme Court already set forth in Umberger, all commercial aquarium collection requires HEPA review regardless whether it occurs under a § 189-2 CML and/or § 188-31 aquarium collection permit. Finally, DLNR’s failure to examine and address the impacts of ongoing commercial aquarium collection contravenes the agency’s constitutional duties to protect public trust resources and traditional and customary Native Hawaiian rights.”

More specifically, the memorandum in support of the motion for summary judgment states, in Umberger, the court held that commercial aquarium collection:

“(1) constitutes an ‘action’ under HEPA because it meets the ordinary meaning of ‘program or project,’ and its impacts ‘fall squarely’ within HEPA’s ambit….

“(2) triggers HEPA because it ‘utilizes state lands and conservation districts in an actual and substantial manner….

“(3) as a matter of law, cannot be categorically exempted from HEPA because ‘the extraction of an unlimited number of aquatic life’ is not ‘a very minor project’ that would qualify under any exemption… and

“(4) is an ‘applicant action’ that requires DLNR’s discretionary content and approval…”

Until the Umberger ruling, the plaintiffs argue, “DLNR had required commercial aquarium collectors to obtain both a § 189-2 CML and a § 188-31 aquarium collection permit.” Neither places any limit on the quantity of fish that can be taken.

Since the 1st Circuit Court barred the state from issuing commercial aquarium permits in October 2017, following remand from the Supreme Court, the DLNR “has issued or renewed at least 66 CMLs to commercial aquarium collectors,” the plaintiffs state, with most of the self-reported collections occurring along the southeastern Ka‘u coast of Hawai‘i island and along the western and northeastern coasts of O‘ahu. “Hawai‘i Department of Agriculture shipping records from 2018 and 2019 also show that commercial aquarium collectors on the island of Hawai‘i have continued to export aquarium animals in high numbers, sometimes totaling hundreds or thousands of animals per shipment,” the plaintiffs note.

In a declaration for the plaintiffs, former commercial aquarium collector James Elder of Puako, Hawai‘i, cast doubt on whether all of these animals were taken without the use of fine-meshed nets. He stated that based on his 27 years of experience and knowledge of other collectors’ practices, he believed it would be impossible to collect the numbers of fish reported without the use of fine-meshed gear.

Elder said that after the circuit court’s 2018 ruling, he tried collecting fish using wide-mesh nets, but found them inad- equate. “I was unable to corral or collect enough fish to maintain my business, because the fish I tried to collect were either small enough to pass through the mesh, or the fishes’ gills would become entangled in my net, requiring me to carefully remove each fish from the net individually, which is too time-consuming to be worthwhile,” he stated.

Last month, when the DLNR apprehended aquarium fisher Steve Howard and two apparent accomplices in Kona, enforcement officers located fine-meshed nets and other equipment used for aquarium collection in the ocean, along with cages containing some 200 fish they had apparently collected and left.

The State Responds

The state’s reply to the motion for summary judgment argues that because “genuine issues of material fact” are in dispute, the motion should be denied.

Defending the DLNR’s position that commercial aquarium collection can continue legally, and in conformance with the Supreme Court’s decision, under commercial marine licenses, deputy attorney general Melissa Goldman states that commercial aquarium collection “post Umberger is completely different than it was before…. [T]he present practice uses completely different tools and methods, occurs in largely different areas, is far more difficult, and involves far fewer specimens than before.”

The state argues, “it is (and always has been) possible to fish for aquarium species intended for commercial sale without a fine mesh net. So, if that court believed that the act of aquarium collection itself was a HEPA-triggering issue, they would have said so in Umberger.”

Instead, it continues, “the Umberger court consistently and clearly limited its holding to the collection activities authorized by § 188-31(a), such as collecting using fine-mesh nets.”

In response to the ban on fine-meshed nets, collectors have come up with new techniques, the state says, including “fishing-pole and hook-and-line fishing, fishing with a so-called ‘slurp gun’ that suctions aquatic specimens directly into the diver’s catch bag, and especially night fishing…. Based on catch reports from 2018, 2019, and so far in 2020, it appears that the reduced-efficiency practice of commercial aquarium fishing has con- tinued under these alternative methods at approximately one-half its prior rate.”Indeed, the state argues, “many opine that unlimited ‘take’ would be physically impossible” post-Umberger given the loss of efficient fishing techniques.

But even if fine-meshed nets were allowed, former DLNR aquatic biologist Bill Walsh argued in a declaration for the state that aquarium collection of sexually immature juvenile reef fish does not harm reef ecosystems. He cited a 2008 study of yellow tang in West Hawai‘i that found only about one percent of recruits were likely to become adults, even when they are protected from fishing. “[I]t is the adult fish which contribute to repopulation; and for many, if not most species, these larger fish are rarely targeted by aquarium collectors,” he stated.

Walsh also disagreed with claims that that the Hawai‘i aquarium trade seriously threatens the populations of collected species. “[I]n fiscal year 2017-2018, yellow tang and kole made up 92 percent of the total catch in the [West Hawai‘i Regional Fishery Management Area]. Yet research from 1999-2000 suggests that yellow tang and kole populations have increased over the years in both closed and open West Hawai‘i areas. And although the population of Achilles tang has declined in recent years, researchers recognize that a key reason for the decline in this species is harvesting of the nearshore adult breeding population by food fishers, and not harvesting of juveniles conducted by aquarium collectors,” he stated.

He also disagreed with claims by some that aquarium collection of herbivorous fish promotes the spread of algae.

Another point the state raises is that under the CML statute, the award of licenses by the state is not discretionary but rather ministerial. The susceptibility of an action to HEPA review, it argues, “depends on whether the agency must exercise discretionary consent in the approval process.”

“The CML statute at issue here does not indicate that CMLs ‘may’ issue. Rather, HRS § 189-2 directs the DLNR (by using ‘shall’) to command DLNR to, among other things, ‘refuse to renew, reinstate, or restore’ or ‘deny’ a CML” only if the ap- plicant has failed to comply with Hawai‘i’s child-support laws.

The state also attempts to expand the roster of parties by casting a net over all holders of current licenses allowing the take of aquarium fish. “According to the complaint,” the state argues, “plaintiffs seek a complete shutdown of state-permitted commercial marine activity by aquarium collectors across the state until the state can fully comply with [HEPA]. … As such, the complaint takes direct aim at the legal basis for the [Division of Aquatic Resources, an agency of the Department of Land andNatural Resources] issuance of CMLs … yet none of the CML-holders are present to protect their interests.”

When the lawsuit was filed, 12 individu- als held valid CMLs, the state continues, “seven of whose CMLs will still be valid and active on the date of the June 24, 2020, hearing on the [motion for summary judgment]. Each of these persons is a necessary party” to the lawsuit.

The Fishers’ Friend

While the current license holders may not have been named as parties to the lawsuit, their interests have been represented by thePet Industry Joint Advisory Council (PIJAC), which has intervened as an amicus curiae supporting the state’s position.

In its response to the motion for summary judgment, PIJAC agrees with the state’s position that material issues of fact preclude the court from issuing summary judgment.

In addition, contrary to what Earthjustice argues as to the unlimited take of aquarium fish allowed by the DLNR’s liberal award of CMLs, PIJAC claims that “economic forces provide a practical limit on fishing practices. … Without immediate demand, fish collectors will not collect aquarium species, as it is detrimental to economic viability.”

PIJAC, whose law firm, K&L Gates, also represents the Hawai‘i Longline Association, brings up the concept of “maximum sustainable yield,” a metric developed to assess the impact of fishing effort on targeted populations of food fish, to argue that “fish are a renewable resource, capable of respawning at rates sufficient to replacing fish taken through fishing practices.”

Also, it argues, the depletion of reef fish that are herbivores and help control algal growth is a non-issue, writing, “even in reefs where the number of herbivorous fish has decreased due to aquarium collection, researchers found no increases in the abundance of microalgae.

PIJAC elaborates on the state’s claim that it has no discretion when it comes to issuing commercial marine licenses. First, it says, Hawai‘i’s environmental policy act “mirrors” the National EnvironmentalPolicy Act. Second, in rulings addressing the scope of NEPA, the U.S. Supreme Court has determined that “discretionary consent is not inferred through the legislative use of shall.” This “lack of discretion” deprives an agency of its “ability to decide, based on its expertise, whether to move forward with an action or not” and thus preparation of an EIS or other environmental disclosure document would be pointless. “A directive within a statute, such as the use of the world ‘shall,’ abdicates the authority of the agency and with it the prerogative to implement or require additional environmental analyses,” PIJAC attorney Geoffrey Davis writes.

In this case, he goes on to argue, “plaintiffs seek to impose discretionary intent where statutory language does not permit such an interpretation. … The language of HRS § 189-2 gives no leeway for DLNR to make a determination as to which permits are to be approved.”

The Plaintiffs Reply

In rebutting the state’s argument that without fine-meshed nets, the aquarium collectors have been so handicapped that there is no need to limit their take, Earthjustice notes that since October 2017, the DLNR “has overseen a meteoric rise in commercial collection.”

“Commercial aquarium catch reports reveal that yellow tang collection on O‘ahu nearly doubled from 21,005 in 2018 to 41,129 in 2019. In Kane‘ohe Bay alone … yellow tang collection spiked from 8,272 to 24,088 fish during the same period, exceeding in one zone the average island-wide take going back to 2000,” it notes.

O‘ahu-based subsistence fisher and fireman Nevin Kamaka‘ala, who says he fishes from Hau‘ula to Kane‘ohe Bay, states in a declaration that in recent years, he’s noticed a dramatic decrease in yellow tang around the reefs.

As to the state’s insistence that aquarium collection with any gear other than fine-meshed nets is allowable, Earthjustice responds that HEPA “requires environmental review of all commercial aquarium collection, regardless of gear types or whether collection occurs under an aquarium permit and/or a commercial marine license.”

PIJAC’s arguments as to the effect of the removal of juvenile fish and the impact of taking herbivores from the reef environment should be addressed through a HEPA analysis: “These matters fall squarely within HEPA’s ambit and intended function and purpose, and DLNR and PIJAC have the burden to disclose and assess these effects through the environmental review process.”

Regarding the arguments of both PIJAC and the state that the law gives the DLNR no choice but to issue CMLs and thus no HEPA analysis is required or even permitted, Earthjustice sees this as a reach:

“Like DLNR, PIJAC grasps for straws in assuming that the absence of either ‘may’ or ‘shall’ in relation to DLNR’s issuance of CMLs … means that DLNR is mandated to issue CMLs in ministerial fashion. The plain language of the statute hardly evinces such an intent, in categorically mandating: ‘No person shall take marine life for commercial purposes … without first obtaining a [CML].’” In addition, Earthjustice says, citing to previous Supreme Court rulings, “where a statute is ‘devoid of any express provision’ regarding an agency’s discretionary authority, the agency may exercise discretion consistent with the ‘supervisory nature of the [agency’s] authority, the [statute’s] express mandate, the public’s interest, and Hawai‘i’s public trust doctrine.”

Judge Jeffrey Crabtree heard arguments on the motion for summary judgment on June 24. No decision had been reached by press time.

—Patricia Tummons and Teresa Dawson

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