Are minor actions permitted by the Department of Land and Natural Resources (DLNR)— or any other state agency, for that matter — exempt from environmental review under the Hawai‘i Environmental Policy Act (HEPA)? A beach cleanup, a night of camping at a state park, the collecting of a fish or two for your kid’s fish tank? Those are all activities that the DLNR requires permits for, but are they all “programs or projects” under HEPA that would require an environmental assessment, or at least an exemption determination?
In its ruling last August on a case involving just the DLNR’s issuance of aquarium fish collecting permits, the Intermediate Court of Appeals stated, “not every level of regulated activity is meant to be swept into HEPA’s reach.” Citing past cases in which courts have found that HEPA does apply — the Superferry case, as well as a number of large residential developments — the appellate court found that those types of actions “stand in stark contrast” to aquarium fish collecting as permitted by state law, “which includes a parent netting one or two fish from a stream for his or her child’s fish tank, as well as larger scale commercial operations. It would be unprecedented to apply HEPA to require individual Hawai‘i citizens to undertake the [environmental assessment] process for such an activity.”
But the plaintiffs in that case — Rene Umberger, Mike Nakachi, Ka‘imi and Willie Kaupiko, Conservation Council for Hawai‘i, Humane Society of the United States, and Center for Biological Diversity — have argued that even if requiring an environmental review for the collection of a single fish might seem absurd, the ICA had a duty to analyze whether such a requirement would be “obviously inconsistent” with HEPA’s purposes and policies.
“Indeed, such an outcome is not only entirely consistent with the statute’s purpose — to ensure environmental concerns are given appropriate consideration before approving each discretionary permit — but dictated by it. In fact, the Legislature amended HEPA in 2012 specifically to shift the responsibility for preparing EAs from the approving agency to the applicant for applicant actions,” the plaintiffs’ attorneys argued in a filing with the state Supreme Court.
“ ‘Program or project’ is broad on its face: it means deliberate activity, which includes trapping fish to stock aquariums. The ICA may believe this plain construction leads to undesirable results in the context of aquarium collection permits, but the Legislature is free to make laws that some might feel lead to questionable outcomes. It is not for the court to second-guess legislative wisdom, but to discern legislative intent and enforce it. The ICA failed to do so, leaving Hawai‘i’s reefs open for exploitation without informed agency oversight, in violation of HEPA’s critically important purpose,” they wrote.
They point out that the aquarium industry’s self-reporting to the DLNR shows that the industry “annually extracts hundreds of thousands of marine animals from Hawai‘i’s reefs. Between 2005 and 2009, aquarium collectors harvested at least 2.2 million marine animals from West Hawai‘i alone, and at least 8.3 million from waters statewide.” It is this massive, unlimited industrial extraction that seems to concern them most.
During arguments before the Supreme Court on March 30, the very first question the justices asked Earthjustice attorney Summer Kupau Odo, representing the plaintiffs, was whether the parents collecting fish for their child’s aquarium needed to conduct an EA.
Kupau Odo pointed out that HEPA has an exemption process that could apply to such small-scale actions that do not significantly affect the environment, but an exemption determination would still have to be made. She suggested that the current level of permitted aquarium fish collecting is not small-scale. She pointed out that there were 160 commercial permits at the time the plaintiffs filed their complaint in 2012. There were probably about 70 recreational permits.
When asked by chief Justice Mark Recktenwald about the ICA’s apparent concern that permits for other activities — camping, hunting, fishing — might be subject to environmental review under the plaintiffs’ view of the case, Kupau Odo said that “how HEPA applies in other contexts is irrelevant. … We are looking at a very specific permit that allows unlimited extraction of our resources.” Camping permits, for example, do not allow for that, she noted, adding that aquarium fish collection permit applicants must also prove to the DLNR that they have the means to keep the fish collected alive.
When it came time to question deputy attorney general William Wynhoff, who represents the DLNR, the justices pressed him on why an environmental review shouldn’t apply to the permits. The DLNR had argued that the plaintiffs want “actions” under HEPA to include “all deliberate human activity,” which he argued would be absurd. But, as Justice Recktenwald noted, aquarium fish collection as permitted by the DLNR is not any human action.
“It’s not taking a step outside of your house. … Her [Kupau Odo’s] argument is there is an element of purposefulness and complexity that goes beyond any purposeful human activity,” Recktenwald said.
Justice Sabrina McKenna added that under HEPA, the DLNR could create an exemption for families removing up to five to ten fish a year for aquarium purposes.
“We can create an exemption. Yes, we can. It involves at least two things: we have to look at an activity and we have to consult with outside agencies,” Wynhoff replied.
If small-scale, recreational aquarium fish collecting can be addressed via a DLNR exemption, there would still remain the issue of whether or not commercial permittees should be required to conduct an EA. In her questioning of Wynhoff, McKenna seemed to think that the DLNR not only needed a proper assessment of aquarium fish collecting impacts, but it had already amassed some information that could be used in an EA.
She first took issue with a statement in one of the DLNR’s filings that the plaintiffs’ claim that aquarium fish collecting is harming the environment “is simply false.”
“How do you know it’s false without doing a study?” she asked Wynhoff.
Wynhoff began citing data in a declaration by Alton Miyasaka of the DLNR’s Division of Aquatic Resources suggesting that the aquarium industry’s impacts were geographically limited.
“Isn’t this the kind of information that would be included in an EA?” she asked.
“Yes,” Wynhoff replied. He then went on to point out that the DLNR’s data on aquarium fish collecting show the catch has remained constant “over many, many years.”
“Again, isn’t this the kind of information that would be included in an EA?” she asked.
“Yes,” he replied.
“In other words, the information would be available to do an EA,” she said, noting that HEPA allows for a group of actions to be included in a single EA. “You could require all of these applicants to do one study together,” she suggested.
—Teresa Dawson