By NANCY COOK LAUER
By NANCY COOK LAUER
West Hawaii Today
Aquarium fish collectors won’t have to go through an environmental assessment in order to get state-issued permits, under a ruling upheld Wednesday by a state appeals court panel.
The Intermediate Court of Appeals panel, in its 23-page opinion written by Associate Judge Katherine G. Leonard, said, unlike in land-based construction activities, commercial fish collectors for the aquarium trade don’t have a specific project to which an EA could be applied.
“We conclude that to interpret ‘program or project’ so sweepingly as to require individual aquarium fish permit applicants to undertake the EA process is not a ‘rational, sensible and practicable interpretation’ of (the Hawaii Environmental Protection Act) and would create an unreasonable, impractical and absurd result,” the opinion said.
On the other hand, the court called “without merit,” a state Department of Land and Natural Resources argument that it doesn’t have discretionary authority to say yes or no to aquarium permits. There are about 50 permit holders, all required to submit catch reports to DLNR.
The state attorney general’s office, representing DLNR in the lawsuit, was pleased with the opinion.
“It’s a good result,” said spokesman James Walther, adding that DLNR also was pleased.
The 2012 lawsuit was filed by Rene Umberger, Mike Nakachi, Kaimi Kaupiko, Willie Kaupiko, the Conservation Council for Hawaii, the Humane Society of the United States and the Center for Biological Diversity. The appeals case was handled by Earthjustice.
It’s very likely the case will be further appealed to the Hawaii Supreme Court, Earthjustice attorney Summer Kupau-Odo said Thursday.
“It’s obviously not working,” Kupau-Odo said about current regulations. “They’re obviously not utilizing all the tools they have to protect the environment.”
Umberger agreed. She thinks the burden of proving that taking aquarium fish is safe should be on the collector, not the environmentalists.
“The idea is not a new idea — to shift the burden of proof to the exploiters. That’s what we do on land,” Umberger said.
The topic is important and often controversial in West Hawaii, home to more than 70 percent of fish taken in the state to sell for aquarium use.
The West Hawaii Regional Fishery Management Area encompasses 147 miles from Upolu Point to South Point. A 1998 state law set aside a little more than 30 percent of coastal waters in that area as fish replenishment areas where aquarium fish collecting is prohibited.
Bill Walsh, aquatic biologist with the state Division of Aquatic Resources, told the County Council last year the abundance of two popular species of aquarium fish has increased dramatically in restricted and open areas of the coastal waters. Yellow tang jumped 111 percent and kole tang increased 75 percent between 1999 and 2014, he said. He couldn’t be reached for further comment by press time Thursday.
Others don’t believe it. They say too many fish are being taken from Hawaii Island’s reefs for out-of-state aquarium hobbyists and too few survive the trip.
“It’s not the same as it used to be,” Nakachi, son of a retired commercial fisherman and boat captain with Aloha Dive Co. in Kailua-Kona, told the County Council last year. “There are certainly less fish.”
Nakachi said aquarium collectors can collect unlimited numbers of most popular tropical fish. He and other dive enthusiasts and environmentalists have tried since at least 1999 to get the state to regulate how many are taken, but so far have been unsuccessful.
David Dart, an aquarium fish collector and member of the West Hawaii Fishery Council, said the current regulations are working. West Hawaii’s fishery is “wildly sustainable” and a model for the state, he said.
“They can appeal it all they want,” Dart said, noting that two courts now have said the Hawaii Environmental Protection Act doesn’t apply.
If that act did apply to commercial aquarium fishing, it would also have to apply to companies renting snorkel gear and whale spotting charters, he said.
“These people keep hitting us from different angles,” Dart said. “They have a personal bias against keeping a fish as a pet.”
Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.