Wrapping up next week is a 30-day period during which public comment on an analysis of reef fish collection — prepared by the aquarium industry — may be submitted to the state Department of Land and Natural Resources. Then DLNR will decide whether to go along with the industry’s finding that allowing an unlimited take has no significant impact on the environment.
The Pet Industry Joint Advisory Council is seeking to end a moratorium on reef fish collection, which the Hawaii Supreme Court imposed in September because the practice hasn’t been studied as required by the Hawaii Environmental Policy Act (HEPA).
Summer Kupau-Odo, who as an Earthjustice attorney represented plaintiffs in a lawsuit against the state on this issue, contends that the industry’s environmental assessments (EAs) — a requirement tied to the court ruling — fall short.
The plaintiffs point out that since the aquarium trade has had access to nearly all of Hawaii’s estimated 475 square miles of nearshore coral reefs, with permits to capture unlimited numbers of more than 250 marine species, complete assessments of trade impacts cannot be put together in a matter of months.
Kupau-Odo is urging DLNR to require the industry to prepare more comprehensive environmental impact statements and to extend the moratorium at least until fuller analysis is complete.
“After allowing the industry to take whatever it wanted, it (DLNR) has the chance to redeem itself by seriously studying environmental effects in a bona fide HEPA review — with input from all stakeholders, including conservationists and Native Hawaiians who were not consulted in the industry’s assessments,” she said. “DLNR should then use all of this information to limit and tailor future permits, if any, as HEPA intends.”
The Lahaina native is a graduate of the University of Hawaii’s William S. Richardson School of Law, and holds an environmental law certificate. Kupau-Odo majored in English writing and rhetoric as an undergrad at Pepperdine University in California. She recently left Earthjustice to start a new job at Native Hawaiian Legal Corp., a public interest law firm focused on Native Hawaiian rights law.
Question: In October, one month after the state Supreme Court’s ruling, Circuit Court followed suit, declaring all commercial aquarium collection permits void and ordered an injunction prohibiting new ones. Then, last month, recreational permits were halted, too. Thoughts on the rulings?
Answer: They give our reef ecosystems some reprieve from decades of indiscriminate mining, correct the state’s illegal permitting practice, and enforce our cornerstone environmental law (HEPA) where the state historically refused to do so.
The plaintiffs’ victory is a testament to the courage and resolve of individuals — that they can and do make a difference. The Hawaii Supreme Court quoted, at length, the declarations of these divers and Native Hawaiian subsistence fishermen. Their voices were heard and validated by the state’s highest court and helped shape legal precedent. There is no greater achievement for a public interest lawyer.
Q: Also, in your work at Earthjustice, you have represented community groups seeking to restore mauka-to-makai stream flows to Maui’s Na Wai ‘Eha. What’s the latest on that effort?
A: In the first contested case before the state Commission on Water Resource Management (CWRM), Earthjustice and its clients, Hui o Na Wai ‘Eha and Maui Tomorrow Foundation, along with the Office of Hawaiian Affairs, fought and succeeded at restoring stream flows to these four rivers and streams after over a century of massive diversions (of public waters for private profit tied to the sugar plantation era and subsequent land development).
The second contested case in this over 15-year legal battle is nearing the end, as the parties await a date to present their final arguments.
In the end, CWRM’s decision will be the most comprehensive water rights adjudication in Hawaii history, determining the flows required for Na Wai ‘Eha rivers and streams, as well as the water rights (including kuleana rights) of dozens of community members who live and farm in these valleys.
This case is important, not only for returning water to the public and righting one form of wrongs against Native Hawaiians, but for building momentum for CWRM to restore other streams throughout Hawaii.
For example, earlier this year, CWRM restored flows to several West Maui streams on its own initiative, short of litigation. This momentous decision would not have been possible if not for the sacrifices of Na Wai ‘Eha and East Maui residents who have endured decades of legal battles.
Q: You have said that rapid development at the expense of local culture in your hometown prompted your interest in the law?
A: I loved growing up in Lahaina in the ’80s and ’90s, but by then it was predominantly a tourist destination — so different from the small town I heard old-timers talk about. Back in the ’50s and ’60s, with the help of a close-knit community, my Okinawan grandmother was able to run a restaurant on Front Street while raising two daughters on her own. Two decades later, hip new restaurants were seating our family near the kitchen — to give tourists the ocean view of Lanai.
So even as a child I was keenly aware of the losses residents were suffering at a fast pace: shrinking public beach access, worsening traffic into and out of Lahaina, replacement of mom-and-pops with larger commercial chains with no connection to our home, its history, and our way of life.
I was also learning, little by little, about the injustices against Native Hawaiians. I was fortunate to have a mother, a public school teacher, who taught me to think critically, to question what was going on around us, and to help others. She taught me what is pono and ignited a calling to fight for fairness for others.
So ultimately my aloha for my home, coupled with the teachings of an inspiring mother, started me on the path to a career in the law. I became a lawyer to empower Hawaii communities to effectuate the change they want for themselves.
Q: In your work as a lawyer, what do you find most rewarding?
A: In public interest litigation, it’s seeing the effects of our work on people’s lives — for instance, how a flowing stream supports kalo farmers to feed their ohana and just brings people joy.
Q: Most frustrating?
A: When the decision-maker (in litigation matters) is dismissive to an argument or cause. Everyone — no matter what side of an issue they’re on — deserves to be heard and respected. I also find it hard to accept that winning in court sometimes does not equate with winning on the ground.
Q: What advice would you give to a someone considering a career as an lawyer with a focus on environmental law in the islands?
A: Public interest environmental lawyers must be humble and learn from those who have the expertise we do not hold. In Hawaii, that means not only consulting with biologists, hydrologists, economists, but learning from kupuna and local residents who have traditional or special knowledge about the area or practice at issue. We cannot do our job effectively unless we nurture trusting relationships and build partnerships with the communities and individuals we represent.
… We must also remind ourselves to go out and enjoy the wonders we work to protect. Most days, we are glued to our chair and computer, but it is important to be a part of, and share in, the environment and communities we fight for. This is how we maintain resilience to challenge powerful forces like government and industry when they break the law, and how we stay optimistic that justice will prevail.
Q: What’s your aim in joining the Native Hawaiian Legal Corp.?
A: Prior to Earthjustice, I worked for the state as a deputy public defender, safeguarding the rights of individuals to fair trials. As an Earthjustice attorney, I advocated for healthy communities and environmental protection. Now at NHLC, I look forward to fulfilling the organization’s mission to perpetuate Native Hawaiian rights, practices, and values — which I see benefiting not just Native Hawaiians, but all who believe in justice and call Hawaii home.