Update of court rulings regarding aquarium fishing: issuing and renewing commercial marine licenses temporarily suspended
DLNR News Release, November 30, 2020
DLNR RESPONSE TO LATEST COURT RULING ON AQUARIUM FISHING IN HAWAI‘I
(HONOLULU) –The Department of Land and Natural Resources is taking immediate steps to comply with a new order issued late 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 Hawaiʻi 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. “We continue to take illegal aquarium fishing seriously. We want people to continue to report any illegal activity,” Case said.
DLNR News Release, July 26, 2018
ENVIRONMENTAL IMPACT STATEMENT REQUIRED FOR COMMERCIAL AQUARIUM PERMITS
(Honolulu) – After a full and detailed review of two Final Environment Assessments (EAs) prepared by the Pet Industry Joint Advisory Council (PIJAC), Suzanne Case, the Chair of the Board of Land and Natural Resources has determined that the preparation of an Environmental Impact Statement (EIS) is required. The determination is based on the significance criteria outlined in Title II, Chapter 200, Hawai‘i Administrative Rules.
PIJAC proposed the issuance of Commercial Aquarium Permits on Hawai‘i Island and on O‘ahu, covering near shore regions except areas already designated as no collection sites such as Marine Life Conservation Districts and Fish Replenishment Areas. Separate EAs were proposed for each island.
The determination of the requirement for an EIS, once published in the next issue of the Office of Environmental Quality Control “Environmental Notice,” will initiate a 30-day public consultation for parties to comment on the action and to request to become consulted parties in the preparation of the draft EIS.
Chair Case commented, “The scope of our review of each commercial aquarium permit EA was thorough. The EIS process for commercial aquarium permits requires an even more in-depth analysis of all available science and data. It will also give interested parties the opportunity to offer additional documentation and comment.”
Draft environmental assessments now available
Draft environmental assessments regarding the impact of the issuance of commercial aquarium permits for the islands of O‘ahu and Hawai‘i are now available for review and comment through the Office of Environmental Quality Control. Comments are due May 8, 2018.
Recreational Aquarium Permits also invalidated
The permit which allows recreational users to collect reef fish with a fine-mesh net was ruled invalid by the First Circuit Court on April 12, 2018. This follows the earlier decision invalidating commercial aquarium fishing permits on October 27, 2017.
DLNR Statement, January 18, 2018:
On January 5, DLNR issued a press release clarifying that no aquatic life may be taken for commercial aquarium purposes off West Hawai‘i until an environmental review is completed. DLNR has received inquiries regarding the legality of transporting aquatic life for aquarium purposes from East Hawai‘i to West Hawai‘i by road or by vessel. Possession or transportation of aquatic life for aquarium purposes by road is legal, as the roads are not within the Fishery Management Area. Possession or transportation of white list species for aquarium purposes by vessel within the West Hawai‘i Regional Fishery Management Area (WHRFMA) is legal only with a valid West Hawai‘i Aquarium Permit and in compliance with other provisions of HAR Chapter 13-60.4. It is illegal to possess or transport non-white list species for aquarium purposes anywhere within the WHRFMA.
Please refer questions to the Kona DAR office at 808-327-6226.
DLNR News Release, January 5, 2018
HAWAIʻI SUPREME COURT DECISION STOPS WEST HAWAIʻI FISHING PERMITS PENDING AN ENVIRONMENTAL REVIEW
(Honolulu) – DLNR announced today that after applying a Hawai‘i Supreme Court ruling from last year to an existing DLNR rule, no aquatic life may be taken for commercial aquarium purposes off West Hawai‘i until an environmental review is completed.
The court ruled on September 6, 2017, that an environmental review must first occur before permits can be used to catch aquatic life for the commercial aquarium trade. Following that ruling, State Circuit Court Judge Jeffrey P. Crabtree terminated and canceled all fine mesh net permits. DLNR rules state that a Hawai‘i State Aquarium Permit is also required to take any aquatic life from waters off of West Hawai‘i for commercial aquarium purposes.
“Although the state permit referenced in the rules is not defined, the intent of the Supreme Court decision is clear,” said Bruce Anderson, Administrator of the DLNR Division of Aquatic Resources.
“As a result of these court decisions it is clear that fine mesh nets cannot be used anywhere in Hawai‘i in the commercial aquarium trade until the environmental review process has been completed. Given the intent of the court ruling, any taking of aquarium fish or other animals for the commercial pet trade in West Hawai‘i is prohibited until the environmental review has been completed,” said Anderson.
Notice to holders of aquarium fish permits, October 31, 2017
A letter has been sent out to all commercial aquarium permit holders and aquarium dealers, notifying them of Judge Crabtree’s order. The letter can be downloaded here. Questions may be directed by email to [email protected].
DLNR Statement, October 27, 2017:
Circuit Court Judge Jeffrey Crabtree ruled today that, based upon a Hawaiʻi Supreme Court opinion issued on September 6, 2017, existing permits for use of fine mesh nets to catch aquatic life for aquarium purposes are illegal and invalid. Judge Crabtree also ordered the DLNR not to issue any new permits pending environmental review.
The department continues to believe that existing aquarium fishing practices are sustainable and environmentally sound. And the department appreciates that dozens of local businesses and families depend on the industry for their livelihoods.
But the department respects Judge Crabtree’s ruling and will fully comply so long as it remains in effect.
DLNR Statement, October 23, 2017:
In response to today’s filing of a petition for a writ of mandamus with the Hawaiʻi Supreme Court by the plaintiffs in Umberger v. DLNR, the Dept. of Land and Natural Resources provides the following statement:
The Department of Land and Natural Resources has consistently stated its belief that existing aquarium fishing practices are sustainable and environmentally sound. And DLNR appreciates that dozens of local businesses and families depend on the industry for their livelihoods.
Circuit Court Judge Jeffrey Crabtree ruled last week that the Supreme Court’s ruling does not require immediate closure of the industry and destruction of those jobs without consideration of the scientific facts regarding harm to the environment.
The appeal sought by petitioners today does not allow DLNR to respond unless the Supreme Court directs it to do so. DLNR will provide more information to either the Supreme Court or the Circuit Court as requested and will promptly comply with any orders from either court.
DLNR Statement, September 7, 2017
The Department of Land and Natural Resources (DLNR) has long issued annual commercial and recreational aquarium fish permits, pursuant to HRS §188-31 and administrative rules, authorizing the use of fine meshed traps or nets to take aquatic life for aquarium purposes. On Wednesday (September 6), the Hawai‘i Supreme Court ruled that aquarium collection using fine meshed traps or nets is subject to the environmental review procedures provided in the Hawai‘i Environmental Policy Act (HEPA). The issue has been remanded to the circuit court for further proceedings.
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 will provide more information as it becomes available.