Updated 5:20 p.m., 9/7/2017
The state Supreme Court has ordered a stop to the commercial collection of aquarium fish in Hawaii pending an environmental review.
In a unanimous 73-page decision Wednesday, the justices ruled against the Department of Land and Natural Resources, vacating prior court rulings and directing the Circuit Court to issue a prohibitory injunction.
The court found that the commercial collection of fish for the aquarium trade is an “action” that is subject to the state environmental review process as laid out under the Hawaii Environmental Policy Act.
Earthjustice attorneys Paul Achitoff and Summer Kupau-Odo represented the plaintiffs, who included concerned Hawaii citizens, avid divers, subsistence fishermen and environmental and animal-welfare groups.
“We are thrilled with the decision,” Kupau-Odo said. “All five justices agree DLNR’s practice of blindly doling out aquarium collection permits without studying environmental impacts is illegal.”
Rene Umberger, Mike Nakachi, Ka’imi and Willie Kaupiko, the Conservation Council for Hawaii, the Humane Society of the United States and the Center for Biological Diversity initially filed the complaint in October 2012. They appealed an unfavorable Circuit Court order in 2013 and later an Appeals Court ruling before reaching the state’s highest court.
During that period, the plaintiffs and other reef advocates pushed for legislation that would have put the brakes on the aquarium trade. They succeeded in getting one through the Legislature earlier this year but Gov. David Ige vetoed the measure.
The governor said in July that he and DLNR officials agree that sustainable policies and practices are needed.
Ige said he had no objection to the first part of the bill requiring DLNR to define “sustainable” and establish policies for sustainable collection. But he said the science does not support the claims made in the bill to justify halting issuance of new permits for use of small meshed nets and traps employed by aquarium fish collectors.
The state currently has no limit on the number of aquarium fish permits it could issue, which is considered a fundamental flaw by the Humane Society and other nonprofits that have pushed for years for an outright ban on aquarium fish collection. There is no fee for the permit, but a $50 commercial marine license is required.
Millions of fish, especially yellow tang, and invertebrates have been caught over the years as part of the commercial aquarium trade. The catch ranged from 412,587 to 1.02 million animals a year from 1999 to 2010, according to the court order.
“Hawaii’s nearshore reefs and fish populations have been massively altered by commercial fish capture for the mainland household aquarium hobby,” Umberger, who has done thousands of scuba dives on reefs around the Hawaiian islands over the years, said in an Earthjustice statement. “We are ecstatic these reef ecosystems will finally get some reprieve.”
The state Attorney General’s office is reviewing the decision to determine what action the state will take in light of the ruling.
DLNR has contended it does not exercise any discretion in approving the permits because as long as applications are filled out properly it approves them all. But the court did not buy that argument, saying that the department exercised its discretion by choosing to approve all permit requests via the online application.
It’s unclear who will undergo the environmental review, whether it would be one of the current permit holders, a group of them or maybe even DLNR.
But the court did make it clear that each individual permit applicant would not have to undergo an environmental review.
“Today’s ruling from the Hawaii Supreme Court reverses all lower court decisions since 2012 and more than 60 years of previously unchallenged practice by the Department of Land and Natural Resources,” Attorney General Doug Chin said in a statement.
A message seeking comment was left Wednesday afternoon with DLNR.
Update Late Thursday afternoon, DLNR issued this statement: “In light of the ruling, until further guidance is received, DLNR has discontinued issuance of new aquarium fish permits and renewal of existing aquarium fish permits.”
DLNR did has not responded to a follow-up email asking how the ruling affects the activities of current permit holders.
DLNR has maintained that the aquarium fish trade does not harm the environment and that current catch levels are sustainable.
DLNR Chair Suzanne Case and her deputies have said the information they have from 40 years of monthly reports from commercial aquarium fish collectors and 15 years of extensive underwater surveys off the Kona Coast of the Big Island — where most of the fish are caught — shows little to no harm from the practice.
Roughly 35 percent of West Hawaii reefs have been closed to aquarium fish collection since 2000.
The Supreme Court justices said further proceedings are necessary to determine if there should also be a prohibitory injunction on recreational aquarium collection permits. They directed the Circuit Court to take up that issue.
Read the full court order below.