Last May, the Board of Land and Natural Resources refused to accept an environmental impact statement that had been prepared by a private group seeking to reopen much of the west coast of Hawai\u2018i island to commercial aquarium\u00a0fish collectors. In August, the Environmental Council upheld the board\u2019s rejection of the document.<\/p>\n\n\n\n
So why, on September 14, did a hui of individuals and groups that advocate for\u00a0a ban on commercial aquarium fishing\u00a0sue the council, the Land Board, and the private group that wants to see 10 individuals be issued permits allowing them\u00a0to resume collecting reef fish?<\/p>\n\n\n\n
Buckle up. It\u2019s a long story.<\/p>\n\n\n\n
Background<\/strong><\/p>\n\n\n\n The group that prepared the document and was seeking the permits on behalf of those individuals is the Pet Industry Joint Advisory Council, or PIJAC. Following\u00a0the Land Board\u2019s decision, it appealed\u00a0to the state Environmental Council. In August, the council voted to uphold the board\u2019s action. In its final decision,\u00a0the council discussed the 14 reasons for the rejection cited in the Land Board\u2019s formal order, holding them up against the legal standard of whether they were\u00a0\u201carbitrary and capricious.\u201d In most in- stances, the council determined that the\u00a0BLNR\u2019s reasoning was sound. In two\u00a0cases, though, the council found that the BLNR\u2019s reasoning was indeed arbitrary\u00a0and capricious.<\/p>\n\n\n\n One of those was the board\u2019s fourth\u00a0reason to reject the EIS. The action proposed by PIJAC, the board suggested,\u00a0would give a monopoly on the use of\u00a0fine-mesh nets to ten individuals. The\u00a0council, however, determined that the BLNR had no basis \u201cto conclude that\u00a0by approving the EIS, the 10 fishers that\u00a0constitute the applicant\u201d would enjoy such a monopoly since the board itself \u2013 and not the applicant \u2013 has the power to\u00a0grant permits.<\/p>\n\n\n\n In its original order, dated August 13, the council appeared to agree with PIJAC when PIJAC, arguing against this particular finding, wrote that the EIS was for just\u00a010 permits \u2013 but that nothing precluded the Land Board from issuing additional permits, provided those permittees would need to undergo their own environmental review process under state law. \u201cThe applicant does not have the authority to ban issuance of aquarium permits for any\u00a0area,\u201d PIJAC wrote.<\/p>\n\n\n\n In appearing to agree with PIJAC on\u00a0this point, the council misquoted it, writing instead, in paragraph 93 of its order, that, \u201cApplicant [PIJAC] is correct that BLNR [sic] has no legal authority to\u00a0ban or prevent the issuance of aquarium\u00a0permits.\u201d<\/p>\n\n\n\n When the mistake was pointed out, the council substituted not the quote or\u00a0paraphrased quote from PIJAC\u2019s argument, as apparently was the initial intent, but rather the statement, \u201cBLNR has limited authority to prevent the issuance\u00a0of aquarium fishing permits.\u201d<\/p>\n\n\n\n The Environmental Council determined that the board\u2019s 11th reason for rejecting the EIS was arbitrary and capricious as well. In this case, the board found\u00a0that the EIS did not adequately discuss\u00a0scientific findings that supported claims that aquarium fishing harmed the environment, such as a 2003 study by Brian\u00a0Tissot and Leon Hallacher. \u201cThe FEIS\u00a0need not agree or disprove the negative\u00a0findings, but it should discuss them,\u201d the board stated. In response, PIJAC claimed\u00a0the Tissot and Hallacher study was dated and that it instead relied on more current\u00a0data.<\/p>\n\n\n\n The council agreed with PIJAC, stating, \u201cIt was appropriate for the applicant\u00a0to use the more recent fish population data.\u201d<\/p>\n\n\n\n The Current Lawsuit<\/strong><\/p>\n\n\n\n On September 14, three individuals \u2013 Willie Kaupiko, his son Ka\u2018imi Kaupiko, and\u00a0Mike Nakachi \u2013 and three groups \u2013 For the Fishes, the Center for Biological Diversity, and Kai Palaoa \u2013 appealed that\u00a0decision in 1st Circuit Court.<\/p>\n\n\n\n The group, collectively calling itself the Kaupiko Hui, noted that it \u201cgenerally supports the council\u2019s decision to affirm BLNR\u2019s rejection of PIJAC\u2019s FEIS.\u201d However, it objected to:<\/p>\n\n\n\n \u2022 The statement in the revised paragraph 93 that the Land Board has only \u201climited authority to prevent\u00a0the issuance of aquarium fishing permits.\u201d This claim, the hui stated\u00a0through its attorneys at Earthjustice, \u201cexceeds the bounds of the council\u2019s legal authority and is legally invalid under the Hawai\u2018i Constitution, BLNR\u2019s implementing statutes, and the Hawai\u2018i Supreme Court\u2019s decision in\u00a0Umberger v. Dep\u2019t of Land and Natural Resources.\u201d<\/em><\/p>\n\n\n\n \u2022 The council\u2019s finding that the BLNR\u00a0was arbitrary and capricious in its rejection of the EIS on the ground that it did not adequately discuss relevant\u00a0negative findings, in paragraph 122\u00a0and Section XI of the council\u2019s decision.<\/p>\n\n\n\n \u2022 The council\u2019s denial of the hui\u2019s\u00a0request to intervene in the contested case the council conducted in hearing\u00a0PIJAC\u2019s appeal. The council ruled\u00a0that the governing statute, Hawai\u2018i\u00a0Revised Statutes Section 343-5(3),\u00a0does not allow any intervention by a third party and, in any case, the council would consider the hui\u2019s \u201cextensive written comments\u201d submitted on the EIS as well as to the Land Board in its\u00a0May meeting. The council \u201cfinds that\u00a0there is no additional information at this time that KH can provide other than what it has already provided.\u201d<\/p>\n\n\n\n The Kaupikos are Native Hawaiians\u00a0who reside in Miloli\u2018i, a tiny fishing village in South Kona. For more than 60 years, the complaint states, Willie Kaupiko \u201chas fished the waters of West\u00a0Hawai\u2018i in the traditional ways handed\u00a0down from his father and grandfather.\u00a0… The aquatic life and reef ecosystems that he depends upon to feed his family suffer direct harm from the aquariumtrade. … Mr. Kaupiko was also a plaintiff in the original litigation that led the courts to mandate environmental review of commercial aquarium collection under [the Hawai\u2018i Environmental Policy Act, or HEPA], has participated\u00a0substantially in every step of the resulting HEPA processes … and made every\u00a0effort to participate in the contested case\u00a0at issue in this appeal.\u201d<\/p>\n\n\n\n Ka\u2018imi Kaupiko, in addition to fishing,\u00a0is a co-founder of a school in Miloli\u2018i \u201cthat teaches children about Hawaiian culture, fishing, and the ocean,\u201d the complaint states. \u201cThe aquarium trade\u2019s harmful\u00a0extractive practices also affect his ability to educate his students about cultural practices that rely upon healthy reefs and\u00a0fish populations.\u201d<\/p>\n\n\n\n Mike Nakachi, also a Native Hawaiian, is a dive operator and founder of Moana \u2018Ohana, which, the complaint says, \u201cprovides diving experiences to private individuals, with a focus on educating its clients about the Hawaiian philosophies of malama \u2018aina and malama kai, i.e., caring for and nurturing land, ocean, and natural resources. Mr. Nakachi has noticed negative changes on the coral reefs where he dives due to the aquarium trade, including a marked decrease in the abundance and diversity of species and broken coral resulting form the trade\u2019s harmful extraction techniques.\u201d<\/p>\n\n\n\n As for the groups involved in the lawsuit, Kai Palaoa is an unincorporated association of Native Hawaiian religious and cultural practitioners, For the Fishes is a Hawai\u2018i-based non-profit whose executive director, Rene Umberger, was the lead plaintiff in the original litigation that led the courts to mandate environ- mental review of commercial aquarium collection, and the Center for Biological Diversity is a non-profit whose \u201clong- standing interests in the health of marine ecosystems has included working to secure protections for species impacted by com- mercial aquarium collection.\u201d<\/p>\n\n\n\n All the appellants had sought to participate in a contested case before the Environmental Council and all but Kai Palaoa were plaintiffs in the\u00a0Umberger\u00a0<\/em>case.<\/p>\n\n\n\n The parties are asking the court to modify paragraph 93 \u201cand declare that BLNR has discretion and authority to prevent the issuance of aquarium permits\u201d under the Hawai\u2018i Constitution, HRS Section 188-31, and the Supreme Court\u2019s ruling in Umberger<\/em>; to modify paragraph 122 and declare that the BLNR \u201cdid not act arbitrarily and capriciously\u201d when rejecting the EIS on the ground that it did not adequately discuss negative findings as to the impacts of aquarium collection on fish populations; reverse the Environ- mental Council\u2019s decision to deny the plaintiffs the ability to intervene in the contested case proceeding; and stay the council\u2019s order.<\/p>\n\n\n\n \u2014 Patricia Tummons<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" Last May, the Board of Land and Natural Resources refused to accept an environmental impact statement that had been prepared by a private group seeking to reopen much of the west coast of Hawai‘i island to commercial aquarium fish collectors. 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