Kaupiko v. Board of Land and Natural Resources
29 August, 2024
Today the Hawai‘i Supreme Court ruled in favor of the aquarium pet trade industry citing that the EIS was legally sufficient as it met HEPA’s content requirements and provided enough information for BLNR to make an informed decision. As a result, the court affirmed the Environmental Court’s denial of the State’s motion to dismiss and its grant of summary judgment for the The Pet Industry Joint Advisory Council (PIJAC).
ruled that the permitting process for commercial aquarium collection must undergo environmental review under the Hawai‘i Environmental Policy Act (HEPA). Following this ruling, the Environmental Court voided all existing permits and enjoined the Department of Land and Natural Resources (DLNR) from issuing new permits without completing HEPA review. The Pet Industry Joint Advisory Council (PIJAC) then prepared an Environmental Impact Statement (EIS) to continue commercial aquarium fishing in the West Hawai‘i Reef Fishery Management Area (WHRFMA).
The Board of Land and Natural Resources (BLNR) initially rejected the EIS, citing fourteen reasons. PIJAC revised the EIS and, after a public comment period, submitted it again. BLNR’s vote on the revised EIS resulted in a 3-3 tie, leading to the EIS being “deemed accepted” by operation of law. Plaintiffs sued BLNR in the Environmental Court for the First Circuit, seeking declaratory and injunctive relief. The court ruled against the plaintiffs, finding that the EIS adequately disclosed facts for the agency to make an informed decision. Plaintiffs appealed, and the State cross-appealed the denial of its motion to dismiss.
The Hawai‘i Supreme Court held that the State is a proper defendant in the case and should defend the EIS. The court also determined that the “rule of reason” should be used in conjunction with HEPA’s content requirements to evaluate an EIS. The court found that the EIS was legally sufficient as it met HEPA’s content requirements and provided enough information for BLNR to make an informed decision. Thus, the aquarium trade has been given the green light to the Hawaii Department of Aquatic Resources to apply for collection permits for reef fish.
This is a devastating blow to the health of Hawaii reefs and will impact local Hawaiian communities. However, fishing is prohibited in specific marine fisheries management areas and the Community Based Subsistence Management Areas. With the plaintiffs Shark Stewards will be monitoring and working to stop issuance of any collection permits in W. Hawaii.
08/23/24
In an August 22 Hawaii Board of Land and Natural Resources heard recommendations from the Department of Aquatic Resources requesting submission of seven permits to collect aquarium fish. After 7 years, the aquarium trade is now poised to collect hundreds of thousands of fish for collection and export.
Most attendees in the hearing are opposed, including strong support against reopening by the Hawaiian community. However, during the board meeting, community members asked to remove two species of black tang (Kole) and one of the commissioners requested halving the lemon tang (Lau’ipala) to 100,000/ year. The commission ended with a deferral until the matter could be considered, but the Chair made clear the Board does not have the power to ban the collection trade, only to regulate it. It will be up to the community and the NGO’s to maintain pressure on the BLNR.
08/23/24
Call for comment to DAR to deny permits for collection, Agenda Item H1
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An unprecedented opportunity to permanently end commercial aquarium collection is here! We are among a group of native Hawaiian and marine protection groups that recently filed a formal petition with Hawaiʻi’s Board of Land and Natural Resources to enact a rule to prohibit collection of reef wildlife for the aquarium pet trade. If granted, the Department of Land and Natural Resources – Division of Aquatic Resources (DAR) will need to begin rulemaking and hold public hearings on the proposal. UPDATE- November meeting postponed and the Aquarium Collection agenda item has been moved to December 8! The Board will make its decision and needs to hear from you! Please submit testimony now urging the Board to approve the petition and direct DAR to begin rulemaking (testimony instructions below – deadline is Weds. December. 7 at 9:00 am). We are hopeful about this petition because recent Board decisions have demonstrated their willingness to carry out a long-standing policy directive to prioritize natural and cultural resources over commercial activities that cause excessive negative impacts to those resources. In a separate new rule proposed by DAR, food fishers will be required to reduce their take of herbivores, which are critical for coral reef health. This shows the need for a permanent ban on the aquarium (AQ) trade which, in West Hawaiʻi, historically took more herbivores than subsistence, recreational and commercial food fishers combined, and proposed to do so again in their Environmental Impact Statements! Further examples of the need to permanently ban the AQ trade: South west O‘ahu’s collapse of yellow tang populations 35 years ago and the continued island-wide depletion of upwards of 90% of those and other species targeted by the trade; West Hawai‘i reefs open to the trade experiencing an 80% decline in yellow tangs as recently as 2016, the last full year of AQ collection before the court temporarily ended it; AQ collector’s intentional breaking of coral – sometimes with crowbars – in the capture of Potter’s angelfish and other species which hide within the reef; Widespread illegal poaching that the AQ trade admits continues to this day, and at least 7 AQ collectors who were charged with poaching more than 1,000 fish; The trade inherently conflicts with local culture and native Hawaiian values, including pono fishing practices to only take what is needed; Published cost/benefit analysis shows residents receive ZERO benefits from the AQ trade, but suffer ALL the costs; The AQ trade’s persistent disregard for important facts as well as for public comments opposing their conclusions in their deeply flawed and skewed Environmental Impact Statements; Your testimony is urgently needed to help ensure our reefs and their creatures remain protected today and for future generations! PRIORITY ACTION 1 – WRITTEN TESTIMONY submitted by deadline: Email: [email protected] Email Subject: Agenda Item F.3 Testimony Email Body: Easy& powerful testimony: give your name, town and island, and a few heartfelt sentences on why you support a rule ending commercial aquarium collection. ACTION 2 – SPREAD THE WORD: Please forward this email to your friends and family and share on social media. The Formal Petition and DARs response (in reverse order) is posted HERE, and the full meeting agenda is HERE. The meeting begins at 9:15, and though not in our hands, we will request that the issue be moved up on the agenda. Monitor meeting progress via YouTube livestream here. |
Thanks to Hawai’i Friends of the Fishes and Native Hawaiian leaders for leading this initiative.