The Hawaii Supreme Court on Wednesday ruled against a group of Big Island residents challenging the state’s authority to permit aquarium fishing in West Hawaii.
Aquarium fishing in West Hawaii halted in 2017 after the Supreme Court found that the commercial aquarium permitting process is subject to environmental review. Following this decision, the Pet Industry Joint Advisory Council — an organization that advocates for laws that support pet care and related industries — began developing an environmental impact statement that would bring the process back into compliance with the Hawaii Environmental Policy Act.
However, when that EIS was presented to the Board of Land and Natural Resources in 2020, the board voted unanimously to reject it. Some of the reasons for that rejection included the document’s reliance on nonpeer-reviewed data and its failure to account for harmful impacts of aquarium fishing or its impact on cultural practices.
PIJAC then revised the EIS and brought it back to the BLNR, which approved the document, but only on a technicality: The board voted 3-3, with the seventh board member absent. In such cases, failure to reach a decision by a certain deadline is treated as a de facto approval.
Consequently, in 2021 a group of Big Island residents and organizations — including Willie Kaupiko, Ka‘imi Kaupiko, Mike Nakachi, and environmental groups For the Fishes, the Center for Biological Diversity and Kai Palaoa — sued the BLNR for violating the Hawaii Environmental Policy Act, arguing the EIS that the board inadvertently approved was insufficient to satisfy the law.
Among the plaintiffs’ arguments were claims that the document did not properly disclose the cumulative impacts of commercial aquarium fishing, with related data relegated to the document’s appendices, instead of its main body.
The environmental court sided against the plaintiffs in 2022, leading to an appeal that eventually brought the matter to the state Supreme Court. On Wednesday, the high court ruled 4-1 that PIJAC’s revised EIS was legally sufficient.
Chief Justice Mark Recktenwald, in his majority opinion, wrote that “the parties disagree on how good the baseline information is, and how to analyze it, but there is no question baseline information is in the (EIS),” quoting the environmental court’s verdict. He also opined that the final EIS sufficiently addressed the criticism that led to the BLNR rejecting its first draft.
Associate Justice Sabrina McKenna submitted a dissenting opinion, arguing that while the EIS might acknowledge preexisting methods of monitoring fish populations, it does not explain specifically how PIJAC will mitigate potential harm to fish populations.
Her dissent continued, noting that the EIS doesn’t provide any meaningful comparison between open fishing areas and protected areas to illustrate the impacts of aquarium collection.
Representatives of the plaintiffs were dejected by the verdict, but said the results don’t mean the state can begin granting commercial aquarium fishing permits right away.
“We’re still in the same boat,” said Mahesh Cleveland, attorney for Earthjustice, which represented the plaintiffs. “The problems we had on Friday are still problems we have today. … I’m not trying to minimize the issue, and our clients are disappointed with the results, but this doesn’t really change anything.”
Cleveland said the BLNR already was poised last Friday to approve a series of rule changes to the Division of Aquatic Resources’ aquarium fishing permitting process. However, those rule changes stalled when a group of residents petitioned for a contested case, which Cleveland said Earthjustice will support.
Aquarium collection, Cleveland said, is a “destructive, extractive, colonial-based industry” that the majority of Big Island residents oppose and is a holdover from pre-statehood laws that didn’t properly consider environmental or cultural impacts.
“We still feel that there’s a huge lack of good science in the EIS,” Cleveland said. “All the court has said is that the EIS is an informational document.”
“We believe in the power of the government to work together with our communities to find long-term and pono solutions for our fishery management issues,” said plaintiff and Miloli‘i resident Ka‘imi Kaupiko in a statement. “But with the court’s decision approving this impact statement, how can we ever be sure that these processes work for the people of Hawaii and our future generations?”
“Removing fish from our reefs, which face a host of other dangers from pollution to climate change, threatens the delicate ecology that depends on these aquatic species,” said For the Fishes Executive Director Rene Umberger in a statement. “It’s disappointing that the court is upholding an insufficient environmental impact statement that fails to disclose and mitigate against known environmental consequences of this industry.”
The Department of Land and Natural Resources issued a brief statement Wednesday regarding the verdict: “Although DLNR hasn’t had a chance to thoroughly review the opinion, we are pleased with the outcome of the Supreme Court’s decision that the revised (EIS) complied with (HEPA). The department has no further comment at this time.”
Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.
