Ruling in Favor of Hawaii’s Department of Land and Natural Resources Relating to State’s Aquarium Fishery

Fishes along Big Island’s Kona Coast (c) 2011 Ret Talbot

Last week I wrote about an EarthJustice lawsuit in Hawaii seeking to compel the Department of Land and Natural Resources (DLNR) to carry out environmental reviews under the Hawaii Environmental Policy Act (HEPA) before issuing any new aquarium collection permits or renewing any existing permits. On Tuesday, the judge in the case, the Honorable Jeannette Castagnetti, ruled in favor of DLNR and against the plaintiffs. The suit was filed by EarthJustice, a nonprofit environmental law organization, on behalf of Rene Umberger, Mike Nakachi, Kaimi Kaupiko, Willie Kaupiko, Conservation Council for Hawaii, The Humane Society of the United States, and the Center for Biological Diversity.  

Suit Could Have Dealt a Serious Blow to Hawaii Aquarium Fishery

If the judge had ruled in favor of the plaintiffs in the case, it likely would have dealt a very severe blow to Hawaii’s marine aquarium fishery, which is the most valuable inshore fishery in Hawaii. Under the language of the lawsuit, the permit applicant would need to conduct the environmental review instead of the state, a fact that would make it all but economically impossible for most aquarium fishers. In addition, some have contended a ruling against DLNR in this case could have negatively impacted public aquariums and other institutions seeking research permits, as the statute governing those permits is similar to the statute governing marine aquarium fishery permits. In fact, a ruling in favor of the plaintiffs could have had wide-ranging implications for all fishing licenses issued by the state.

Not a Ruling on Hawaii’s Aquarium Fishery 

The judge’s decision really came down to an interpretation of language, not a ruling on any material facts about the aquarium fishery in Hawaii or how it is managed by DLNR. “The key here is whether the ‘action’ as characterized by plaintiffs is a project or a program,” said Castagnetti in her ruling Tuesday. “The broad ‘action’ of ‘aquarium collection’ is neither a program nor a project as those terms are generally defined,” she said. Being a “program” or a “project” (e.g., the Koa Ridge Development Project, the superferry project, a research program concerning genetically modified algae, etc.) requiring a permit issued at the discretion of the State could trigger environmental review under HEPA. As such Judge Castagnetti concluded:

Accordingly the court finds that as a matter of law, ‘aquarium collection’ does not specifically identify any program or project to review for HEPA purposes. Accordingly, the court finds that as a matter of law, ‘aquarium collection’ is not an applicant ‘action’ that triggers HEPA.

It is not known at this time if the plaintiffs will appeal the judge’s ruling.