For six decades, people who want to use a fine-mesh net or trap to catch aquarium fish in Hawaii have been required to apply for a collector’s permit from the Department of Land and Natural Resources.

And during those six decades, not a single person who correctly filed a proper application has ever been turned down for any reason.

That might sound like an indictment of official inaction over a time period that has witnessed the emergence of an industry that captures hundreds of thousands, perhaps millions, of colorful Hawaiian fish and other reef creatures each year. The harvest is fueled by consumer demand from collectors on the U.S. mainland and around the world, without apparent regard for the impact on our fragile reefs and ocean environment.

Puffer fish are common catches in the aquarium trade.

Puffer fish are common catches in the aquarium trade.

Wikimedia Commons

But the argument wasn’t part of an exposé of regulatory breakdown. Instead, it’s the claim that begins DLNR’s defense in a case involving the hot button issue of the largely unregulated taking of aquarium fish. The case is scheduled for oral arguments before the state Intermediate Court of Appeals in early March.

The original lawsuit was filed in late 2012 by three individuals, along with the Conservation Council of Hawaii, the Humane Society of the United States and the Center for Biological Diversity.

The plaintiffs, represented by the nonprofit environmental law organization EarthJustice, sought to force DLNR “to comply with the environmental review procedures mandated by the Hawai’i Environmental Policy Act” before issuing or renewing permits for catching aquarium fish.

The argument seemed straightforward. The plaintiffs pointed to studies showing that herbivorous fish  and invertebrates such as sea urchins, starfish, snails and sea cucumbers, “are important to reef health because they help to control algal growth and occupy numerous unique niches within the ecosystem.”

Their removal in large numbers affects reef ecology, and likely adds to the stress on reefs already coping with damage from coral bleaching, ocean acidification and pollution.

The solution, plaintiffs argued, was simply to comply with the Hawaii Environmental Policy Act, or HEPA, which requires a public and participatory environmental review process to “alert decision makers to significant environmental effects which may result” from their actions.

“Brightly colored, high-demand fish are disappearing from the reefs.” — Maui diver Rene Umberger

But state Judge Jeannette H. Castagnetti agreed with attorneys representing DLNR, who argued the environmental provisions are only triggered if there is an “action” that meets certain legal criteria.

Prior court cases triggering environmental reviews have involved specific, identifiable projects, “usually if not always, a construction project of some kind,” DLNR argued.

“There is absolutely no precedent for broadening the definition to include catching fish or other aquatic species,” DLNR argued in a legal motion to dismiss the case.

Further, the department argued that its approval of aquarium fish collection permits is not discretionary, but merely “ministerial.” As evidence, the department’s lawyers pointed to the online application process, in which applicants check a box indicating the type of permit, check another box indicating they agree with the terms and conditions, and then provides their  name and other required information.

There is no space in the process for the state or its officials to exercise discretion, the state argued. And since the environmental review process is only triggered if the state takes discretionary action, there is no need to comply with environmental laws before issuing the permits,  the department argued.

Judge Castagnetti agreed, ruling that the state did not have to examine potential environmental impacts because, as a matter of law, there was no triggering “action” as called for by statute, and no discretionary state action.

The plaintiffs appealed.

Parsing Legal Terms On Appeal

Legal documents filed by plaintiffs in their appeal stress the open-ended environmental impacts of the virtually unregulated harvesting of reef fish.

“DLNR places no limit on the number of Permits it will issue, and routinely renews Permits annually,” according to plaintiffs’ opening brief. “DLNR also does not limit the number or type of animals that an industrial fish collector may take from State waters and sell commercially, resulting in completely unrestrained extraction.”

Plaintiffs argue that removing large numbers of reef fish can lead to “devastating ecological consequences,” due to their role in regulating the reef’s overall health.

And while there is some scientific debate over whether populations of aquarium fish are stable, declining or actually increasing, plaintiffs see the issue starkly.

“Brightly colored, high-demand fish are disappearing from the reefs,” Maui diver Rene Umberger, the lead plaintiff in the case, said Tuesday in a telephone interview.

Hawaii is one of the top global exporters of tropical fish, and broad population declines are the result of pressure from consumer demand on the mainland and elsewhere, she said.

But while the emotional debate over commercial harvesting of aquarium species is having an impact over the reefs and surrounding ecosystem, this is largely irrelevant to the specific legal issues at the center of the current appeal.

The appeal itself rests on the interpretation of two words: “action” and “may.”

The state argues flatly that issuing permits to collect of aquarium species doesn’t involve any action that would trigger the environmental review process or the need for either an environmental assessment or environmental impact statement.

Plaintiffs argue that the state shouldn’t be allowed to hide behind its 60-year record of inaction.

Plaintiffs meanwhile, point to the legislative history of the Hawaii Environmental Policy Act to show that it is intended to protect the right of future generations to a healthy environment, and must be applied broadly in a way that reflects that intent.

But while the law says DLNR “may” issue aquarium fish permits, implying that the department exercises discretion in handing out  permits, state lawyers say it has never worked that way, and in fact the department can’t discriminate against some applicants while approving others.

They point to an 1897 Hawaii case in which the Supreme Court ruled “the mere use of the word ‘may’” did not grant the government “absolute discretion” in whether or not to approve a license.

But the analogy to “an archaic lodging house licensing statute” doesn’t apply in this case, because the law providing for aquarium fish permits includes several  provisions that show legislators intended for DLNR to establish rules and standards for the exercise of its discretion.

As a result, plaintiffs argue, the state shouldn’t be allowed to hide behind its 60-year record of inaction.

Just how broadly the court interprets these provisions of the Hawaii Environmental Policy Act will affect cases far beyond the aquarium fish issue. But with both sides dug in, it is highly likely that the losing side will take their appeal to the State Supreme Court.

Arguments in the case are scheduled for 9 a.m. on March 9 by Judges Alexa D.M. Fujise, Katherine G. Leonard and Lawrence M. Reifurth. Chief Judge Craig H. Nakamura recused himself from the case earlier this year.

About the Author

  • Ian Lind
    Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for 15 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.