{"id":9991,"date":"2017-10-01T02:26:50","date_gmt":"2017-10-01T02:26:50","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=9991"},"modified":"2018-06-06T22:36:54","modified_gmt":"2018-06-06T22:36:54","slug":"fish-collectors-claiming-property-rights-now-ask-court-to-let-them-intervene","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=9991","title":{"rendered":"Fish Collectors, Claiming Property Rights, Now Ask Court to Let Them Intervene"},"content":{"rendered":"
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Five years after the Department of Land and Natural Resources was sued over its practice of indiscriminately awarding permits for aquarium fish collection, four years after the lower court ruling was challenged in the Intermediate Court of Appeals, and more than a year after the case was brought before the state Supreme Court, a group representing the interests of commercial aquarium fish collectors is only now wanting to intervene to protect what it says are the rights of its members.<\/p>\n

The group, the Pet Industry Joint Advisory Council, jumped into the fray on September 12, when it filed a motion to be granted status as an intervenor-defendant. The filing was made just six days after the Supreme Court remanded the case back to the Circuit Court.<\/p>\n

Under instructions from the Supreme Court, the lower court is to enjoin all commercial aquarium fish collection pending the DLNR\u2019s compliance with the state\u2019s environmental review law and also is to determine whether recreational as well as commercial aquarium collectors should be subject to the injunction.<\/p>\n

The deputy attorney general represent- ing the DLNR, William Wynhoff, has filed a motion supporting the intervention.<\/p>\n

Attorney Summer Kupau-Odo, with the Earthjustice law firm representing the plaintiffs, has filed a motion in opposition. \u201cThe Supreme Court remanded the case for entry of that injunction and we\u2019re working to expedite that,\u201d she told Environment Hawai\u2018i<\/em>. As to the Pet Industry council\u2019s efforts to intervene at this late date, she said: \u201cThe circuit court cannot review or alter the Supreme Court ruling. Their [the industry\u2019s] intervention is moot. Aside from that, it\u2019s too late.\u201d<\/p>\n

A hearing on the motions was scheduled for October 1 before Circuit Judge Jeffrey P. Crabtree.<\/p>\n

\u2018A Constitutional Property Interest\u2019<\/strong><\/em><\/p>\n

In its motion, the pet industry council argued that the current permit holders who would be affected by an injunction have a property interest in their permits and that to suspend them, even temporarily, would deprive them of their constitutional rights to due process. Representing the organization is the law firm of K&L Gates (among its other clients is the Hawai\u2018i Longline Association).<\/p>\n<\/div>\n

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The group describes itself as a trade organization for the pet industry \u201cwhose members includes Hawai\u2018i fishers who currently hold aquarium collection permits issued\u201d by the DLNR. According to its motion, \u201cthe council seeks to intervene in this action to [sic] as a party interested in the pet industry generally, in the ability of Hawai\u2018i fishers to continue to collect aquarium fish under their existing permits, and specifically to preserve the continued validity of its members\u2019 already-issued aquarium collection permits, and its members right to renewal of those permits during the remedy phase of this litigation.\u201d<\/p>\n

Although the Supreme Court instructed the Circuit Court to issue an injunction against further commercial aquarium collection, the council argues that the lower court has discretion to determine the scope of the injunction. \u201cWhile the Supreme Court determined that the issuance of commercial aquarium collection permits is an action that requires HEPA review and that some form of injunctive relief is appropriate, it did not and could not, issue an order as to the scope of any such relief,\u201d it argued.<\/p>\n

A broad injunction \u201cwill have a profound economic affect on all permit holders, none of whom were sued by plaintiffs and none of whom have previously participated in this action, even those plaintiffs specifically identified in their complaint. In short, if relief is shaped and ordered without the participation of the intervenor, the voices of the pet industry generally and the very commercial permit holders whose permits have been challenged by plaintiffs will not be heard despite the profound potential impact of these proceedings. Current permit holders have a constitutional property interest in the permits that have already been issued, the temporary enjoining of which would require individual due process notice and opportunity to be heard prior to revocation,\u201d it stated.<\/p>\n

As to the delay in its involvement in the case, the council argues that involvement at this point is indeed timely. \u201cTimeliness of a motion to intervene is determined by looking at the totality of the circumstances,\u201d wrote K&L Gates attorney Geoffrey M. Davis. In this instance, he added, \u201cthe council seeks to intervene with respect to the remedy portion of this case…; the council does not seek to relitigate the merits of the issues decided by the Supreme Court.\u201d<\/p>\n

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The motion argues that the commercial aquarium permit holders represented by the council have \u201cexisting, legally cognizable property interest in, and a right to the use and renewal of those permits.\u201d<\/p>\n

\u201cThe time it takes for DLNR to conduct such a HEPA review is far from certain. In the meantime, if plaintiffs\u2019 requested relief is granted, current holders of commercial collection permits [would be prevented] from collecting pursuant to those permits, potentially destroying their businesses. Moreover, permit holders whose permits are set to expire would be unable to renew their permits, again potentially destroying longstanding businesses in which individuals and Hawai\u2018i families have invested over many years,\u201d Davis argued.<\/p>\n

Responses<\/strong><\/em><\/p>\n

On September 15, deputy attorney general Wynhoff filed a short (less than two-page) memorandum supporting the council\u2019s intervention. \u201cThis case … presents issues of major importance that affect personal, financial, and philosophical interests and concerns of many Hawai\u2018i citizens,\u201d he wrote. \u201cThe state does NOT agree with all of intervenor\u2019s arguments,\u201d he continued. \u201cBut the state supports intervenor\u2019s right to have those arguments fully and fairly considered by this court.\u201d<\/p>\n

The plaintiffs\u2019 response to the motion to intervene was not as sympathetic as the state\u2019s and, at 16 pages (excluding attachments) was far more expansive.<\/p>\n

\u201cAlmost five years after this lawsuit was filed … Pet Industry Joint Advisory Council seeks to intervene as a defendant to interject defenses irrelevant to the matters the Supreme Court directed this court to address on remand,\u201d wrote Kupau-Oda. \u201cNow that a substantial remedy plaintiffs requested \u2013 a prohibitory injunction enjoining commercial aquarium collection \u2013 is about to take effect, PIJAC raises purported due process claims to challenge the injunction\u2019s application to existing commercial permits.\u201d<\/p>\n

The motion to intervene now \u201cwould be pointless,\u201d she argued, \u201cas this court is not authorized to hold further proceedings addressing commercial aquarium collection \u2013 it cannot afford PIJAC the relief it seeks.\u201d<\/p>\n

\u201cAt bottom, PIJAC\u2019s motion to inter- vene is a backdoor challenge to the Supreme Court\u2019s decision, which this court legally cannot change,\u201d she wrote.<\/p>\n

\u2014 Patricia Tummons<\/strong><\/em><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Five years after the Department of Land and Natural Resources was sued over its practice of indiscriminately awarding permits for aquarium fish collection, four years after the lower court ruling was challenged in the Intermediate Court of Appeals, and more … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":9649,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[427],"tags":[7],"class_list":["post-9991","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-october-2017","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/9991","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9991"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/9991\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/9649"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9991"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9991"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9991"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}