Hawaii’s Board of Land and Natural Resources hit with aquarium fishing lawsuit

A hui of cultural practitioners and conservation groups has filed a lawsuit against the state’s Board of Land and Natural Resources to invalidate an environmental review asking to reopen the aquarium fishing industry in West Hawaii.

The Kaupiko Hui filed the lawsuit in Hawaii’s Circuit Court on Oahu on Tuesday, just days after the Land Board accepted a revised final environmental impact statement that could allow the collection of aquarium fish in the West Hawaii Regional Fishery Management Area, where the commercial activity has been shut down for months.

The lawsuit would invalidate the RFEIS and prohibit the BLNR and state Department of Land and Natural Resources from issuing aquarium permits or commercial marine licenses for aquarium purposes.

“After everything we’ve done to try get a handle on this problem, it makes no sense for BLNR to give the industry a pass,” said Wilfred “Willie” Kaupiko, a Milolii fisherman and member of the hui, in a statement. “How will we protect these resources for future generations if these agencies aren’t looking out for us here in Hawai‘i?”

The RFEIS was presented to the BLNR during its June 25 meeting, and the board, with six members present at the time, split its vote 3-3 on the decision to accept it. A tie meant no action was taken then, but the review was accepted by default Friday because the board did not resolve the tie by then.

The acceptance of the revised impact statement could lead to the reopening of commercial aquarium fishing on the west side of Hawaii island.

A Circuit Court decision in November completely closed the aquarium fishery in Hawaii after a previous lawsuit, which involved most of the same parties involved in Tuesday’s suit, alleged that the Department of Land and Natural Resources was improperly allowing the industry to continue.

The Kaupiko Hui consists of Kaupiko and Mike Nakachi, who are both cultural practitioners and residents of the area, and the nonprofits For the Fishers, the Center for Biological Diversity and Kai Palaoa. The coalition, along with many others, are trying to keep aquarium fishing from returning to Hawaii — at least until it is satisfied that a proper environmental and cultural assessment is made.

The lawsuit said the RFEIS, submitted by the Pet Industry Joint Advisory Council, does not satisfy the Hawaii Environmental Policy Act, the state’s environment review process, because it fails to address a number of problems.

They include the “localized impacts of PIJAC’s proposed catch quotas in individual aquarium catch zones,” “sustainable levels of take based on species’ life span, population size, reproductivity rates, and age at first reproduction,” “impacts from exceeding historical levels of catch for some species,” “cumulative impacts by comparing fish populations in collected areas to areas closed to the aquarium trade,” “cultural impacts to Native Hawaiians” and “economic impacts to affected stake- holder groups beyond the collectors themselves.”

The nonprofit Earthjustice, which is representing the hui, said the BLNR has ignored the problems of the environmental review.

“If your first attempt at an EIS is rejected, you can try again, but the law is crystal clear that you have to fix the problems in the first one,” said Earthjustice attorney Mahesh Cleveland in a statement. “These collectors, this industry, and now the Board have completely ignored that requirement; the Board cannot allow for reopening the trade without demanding that the applicants address head-on the many flaws which demanded rejection last year.”

PIJAC had argued in its RFEIS that a limited reopening of aquarium fishing would be sustainable. In the review, it had recommended that only seven permits be given out to commercial fishers who together would be allowed to catch only 247,000 fish per calendar year. Further, those fish would be part of just eight white-listed species, and permitted fishers would be limited to catching fish only in the WHRFMA and nowhere else in the state.

The council had presented a previous EIS to the BLNR in May 2020 that was unanimously rejected. The board’s chairwoman, Suzanne Case, said at the time that the proposal was “without meaningful limits on future catch, without enough attention to our highly depleted stocks … and without adequate analysis of the near-future effects of climate change, ocean warming and coral bleaching on our reefs.”

That EIS proposed to reopen aquarium fishing at WHRFMA by allowing 10 permits to be issued. There were 40 species on the white list, and the proposal included bag limits for some species.

Case and two other board members voted to accept the RFEIS and, in contrast to beliefs of Earthjustice and the hui, said it had addressed many of the complaints the board had last year.

The DLNR declined to comment for this story, saying it does not comment on ongoing legal matters.

In 2017, prior to the collection ban, 45% of the aquarium fish in Hawaii were caught in the WHRFMA on Hawaii island.