A hui of Hawaiian cultural practitioners, the Conservation Council for Hawaii and the Center for Biological Diversity stopped President Donald Trump from allowing commercial fishing in parts of the Pacific Islands Heritage Marine National Monument area, according to a ruling Friday by a federal judge.
The U.S. Department of Justice was unable to convince U.S. District Court Judge Micah W.J. Smith that a president has the ability to sidestep the federal rulemaking process and its public comment period.
Trump has “concluded that appropriately managed commercial fishing should be allowed within the Monument Expansion,” according to Smith’s order issued Friday.
“Persons of good faith might agree or disagree with the President’s conclusion. But this court does not sit in judgment of the wisdom of that policy. The only questions presented here are legal ones: whether Plaintiffs have the procedural right to make the agency hear them out on the question of what restrictions are needed to ensure that commercial fishing in the Monument Expansion is indeed appropriately managed (and to have that opportunity before commercial fishing is given the green light), and whether Plaintiffs have the right to vindicate their asserted procedural right in court,” wrote Smith, noting the National Marine Fisheries Service’s April 25 letter allowing fishing in parts of the monument is vacated.
On April 17 Trump proclaimed that U.S.-flagged vessels in parts of the Pacific Islands Heritage Marine National Monument south and west of Hawaii were reopened to commercial fishing in the area of the monument that was expanded under former President Barack Obama.
Eight days later, on April 25, a letter from the U.S. National Marine Fisheries Service to all commercial fishing permit holders said the area was open for fishing.
A hui of Hawaiian cultural practitioners called Kapa‘a, along with the Conservation Council for Hawaii and the Center for Biological Diversity, filed the lawsuit May 22 alleging that Trump and the Fisheries Service can’t undo federal regulations without formally amending those regulations through a process that includes an opportunity for parties impacted by the rule to provide input.
Because NMFS took the position that it had “no obligation to engage in notice and comment procedures” to repeal the existing regulations prohibiting commercial fishing, “Plaintiffs — and the public more generally — were afforded no opportunity to comment” on whether specific types of commercial fishing, such as longline and purse seine fishing, which the groups contend are highly destructive, are consistent with the “appropriately managed commercial fishing” that Trump had called for in his proclamation, Smith wrote.
The interested cultural and environmental organizations who sued moved for summary judgment on two of their claims, which are based on the Magnuson-Stevens Fishery Conservation and Management Act and the Administrative Procedure Act.
“Plaintiffs contend that NMFS violated these statutes by failing to engage in notice-and-comment rulemaking before issuing its letter. In its opposition, the government argues that Plaintiffs lack Article III standing and that the court lacks jurisdiction to consider their claims. But the government has chosen not to defend the letter on the merits,” wrote Smith, noting that government forfeited any argument on the merits of groups’ notice-and-comment claims.
In 2009 President George W. Bush established by proclamation the initial form of the monument, originally known as the Pacific Remote Islands Marine National Monument, to create national wildlife refuges with commercial fishing bans radiating out 50 miles around Howland, Baker and Jarvis islands; Johnston, Wake and Palmyra atolls; and Kingman Reef.
The Fisheries Service then issued a letter to commercial fishing permit holders advising them of the change that it said became immediately effective under Bush’s proclamation.
Four years later, in 2013, the Fisheries Service codified the prohibition in its regulations through the formal rule-making process.
A similar effort began in 2014 when Obama by proclamation expanded the protected area to 200 miles around Jarvis Island, Johnston Atoll and Wake Atoll to create the world’s largest marine protected area.
The Fisheries Service later codified Obama’s prohibition in its regulations through the rulemaking process, though the changes did not eliminate what Bush established earlier by proclamation followed by formal rules.
Smith’s ruling Friday was lauded by Earthjustice attorneys who represented the groups that sued the government.
“The court acknowledged the importance of giving due consideration to the voices of our kupuna in these challenging times. The Fisheries Service cannot ignore our perspectives as the native people who belong to the islands and to the ocean that surrounds us. The law guarantees a process where we can advocate for protecting the generations of our children’s children who are yet to be born,” said Solomon Pili Kaho‘ohalahala, founding member of Kapa‘a, in a statement.
Jonee Peters, executive director of Conservation Council for Hawaii, applauded Smith’s court for “rejecting the Fisheries Service’s attempt to gut fishing protections in the monument without going through the formal rule-making process” which ensures a voice for all those concerned about protecting the monument’s vital species and ecosystems for today, and for future generations.
Maxx Phillips, Hawaii and Pacific Islands director and staff attorney at the Center for Biological Diversity, said the court order was a “huge win for the Pacific’s irreplaceable marine life and for the rule of law.”
“The court made clear that the federal government cannot quietly sweep aside critical fishing protections without giving the public a voice,” Phillips said. “These sacred and irreplaceable ecosystems are home to endangered species, deep-sea corals, and rich cultural heritage. We will keep fighting to ensure these protections remain in place for generations to come.”
Earthjustice attorney David Henkin said the court “forcefully rejected the Trump administration’s outrageous claim that it can dismantle vital protections for the monument’s unique and vulnerable species and ecosystems without involving the public.”
“The court reaffirmed that, even if President Trump’s directive to allow some commercial fishing in the monument were legal (which we dispute), the Fisheries Service still has the discretion to ban highly destructive practices like longline and purse seine fishing,” Henkin said. “The court’s order means that the Fisheries Service cannot shirk its duty to ensure adequate protection for the monument.”
Source: The Garden Island
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