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Court: Review required in commercial aquarium collection

HONOLULU — The state Department of Land and Natural Resources violated the law by allowing the aquarium trade first reviewing the environmental and cultural impacts, the state’s environmental court ruled last Friday.

The ruling shuts a loophole the agency created after a landmark 2017 decision by the Hawai‘i Supreme Court mandated public disclosure and analysis of the aquarium pet trade’s effects in Hawai‘i.

Willie Kaupiko, Ka‘imi Kaupiko, Mike Nakachi, For the Fishes, and the Center for Biological Diversity, represented by Earthjustice, filed suit in January to enforce the letter and intent of the courts’ prior rulings and ensure that all aquarium collection complies with the environmental review process required under the Hawai‘i Environmental Policy Act.

The ruling will stop the collection of marine animals from Hawaiian reefs.

“We are relieved that the court shut this illegal loophole so our reefs can finally rest while the agency examines the industry’s harmful effects. These reefs are vital to our way of life and to the health of our entire Pae‘aina (Hawaiian Islands),” said Ka‘imi Kaupiko, who regularly fishes with his family in Miloli‘i, the state’s last traditional Hawaiian fishing village.

The animals targeted by the aquarium trade are primarily herbivorous reef-dwellers that serve unique functions in the coral reef ecosystem, such as helping to control algae growth. Studies have shown that reducing diversity of reef fish and shellfish affects a reef’s ability to respond to stresses or disturbances. This is important as reefs come under serious pressure from global threats, including climate change and ocean acidification.

In response to the landmark 2017 decision by the Hawai‘i Supreme Court, DLNR allowed the industry to sidestep the court rulings and carry on without environmental review, resulting in the extraction of more than half a million marine animals from Hawai‘i reefs over the past three years.

In creating its loophole, DLNR claimed that the 2017 court decision applied only to the use of so-called “fine-meshed” nets, then proceeded to give the aquarium industry free rein to continue taking marine life using any other type of equipment. The court ruling rejected that false distinction and made clear that Hawai‘i’s environmental impact statement laws apply to all aquarium collection, regardless of the extraction equipment used.

DLNR responds

The Department of Land and Natural Resources is taking immediate steps to comply with a new order issued late last Friday from the First Circuit Court, requiring Chapter 343 environmental review for issuance of new or renewed annual commercial marine licenses (CMLs) to be used for aquarium fishing purposes under HRS 189-2.

This is in addition to the Hawai‘i Supreme Court’s 2017 ruling requiring Chapter 343 environmental review for issuance of fine-mesh net permits used for aquarium fishing under HRS 188-31. “The court agrees with DLNR that Umberger did not specifically address or resolve the issue of whether HRS 189-2 permits are an “action” for purposes of HEPA.”

Immediately, the DLNR Division of Aquatic Resources (DAR) will not renew or issue new CMLs without a condition prohibiting the taking of marine life for aquarium fishing purposes until Chapter 343 environmental review is completed.

41 commercial marine licensees of the approximate 3,000 CMLs currently report aquarium catch.

The court declined to issue an injunction at this time stopping aquarium fishing under existing CMLs, which are issued for a year at a time. “The court therefore declines to issue an injunction at this time, without prejudice. Plaintiffs may file a further motion requesting injunctive relief if they so choose.”

The court recognized that an immediate ban would “cause economic hardship to aquarium fishers, their families, employees, and vendors” particularly now, during the pandemic.

DLNR Director Suzanne Case pointed to several high-profile aquarium fishing enforcement busts on Hawai‘i island this year that were the result of tips from concerned community members. These cases are still in the courts and DLNR civil violation systems.

In the meantime, DLNR is encouraging anyone who suspects illegal aquarium fishing to report it immediately to the DLNR 24-hour violation hotline or via the free DLNRTip app.
Source: The Garden Island

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