Court Effectively Ends Aquarium Fishing in West Hawai‘i With Environmental Ruling

The yellow tang is one of the Hawaiian reef inhabitants most sought by aquarium fish collectors. Wikimedia Commons photo.

The courts dealt another blow to the aquarium fishing industry on Friday, effectively closing a loophole in the law that allowed the take of aquarium species if procured by specific methods under an alternate permit.

The First Circuit Court of Hawai‘i on Nov. 27 ruled that a Chapter 343 environmental review will be necessary moving forward for the issuance of any new or renewed commercial marine licenses (CMLs) to fishers who intend to take aquarium fish.

In 2017, the State Supreme Court suspended all aquarium fishing permits that allowed for the use of fine-mesh nets under HRS 188-31, ruling environmental reviews necessary to determine the impact of the exotic pet trade on Hawai‘i’s ocean ecosystems as part of Umberger et. al vs. the Department of Land and Natural Resources. 

Fine-mesh tactics are more effective and allow for a substantially larger take of aquarium fish, which opponents of the industry argued were disappearing from fisheries like the one in West Hawai‘i due to overfishing.

Subsequently, a group of 10 fishers and the National Pet Industry Joint Advisory Council submitted a 2,000-plus page environmental impact statement (EIS) in an attempt to reclaim their licenses to fish for designated aquarium species in West Hawai‘i. The State Board of Land and Natural Resources, however, voted 7-0 to reject the EIS, saying it did not sufficiently address the environmental concerns noted in the Supreme Court’s 2017 decision.

While no fine-mesh permits have been issued by the state in three years, Hawai‘i’s Department of Land and Natural Resources has allowed the take of aquarium fish by those with a commercial marine license (CML) under HRS 189-2. The difference is that under this more standard permit, the use of fine-mesh nets is not allowed. Gathering the aquarium species by other, less effective methods has been permitted. Currently, 41 of approximately 3,000 CMLs report aquarium catch.

The Circuit Court’s ruling on Friday said that those CMLs would be subject to environmental review when they come up for re-issuance after one year’s time, which makes it unlikely that aquarium fishing in West Hawai‘i waters by any method will be allowed once the current permits expire — unless a stronger environmental case can be made by industry supporters that the practice doesn’t damage ocean ecosystems.

“For years, the DLNR was just using the small-mesh net permit as a way to manage the fishery,” explained Rep. David Tarnas (D-7, North Kona, North Kohala, South Kohala), who will chair the Hawai‘i House of Representatives Water and Land Committee during the upcoming legislative session. “Now, they’re being told they can’t do it and need to do it through (HRS 189-2). Everyone who wants to engage in the fishery has to engage in (an environmental review).”

Opponents of the aquarium industry viewed the stance by the DLNR as an “illegal” workaround to the Supreme Court’s ruling. In a Monday press release from Earth Justice — which represented For The Fishes, the Center for Biological Diversity, Willie Kaupiko, Ka‘imi Kaupiko, and Mike Nakachi in the case against the DLNR — said the First Circuit Court’s decision was a win for Hawai‘i’s oceans.

“We are relieved that the court shut this illegal loophole so our reefs can finally rest while the agency examines the industry’s harmful effects,” Ka‘imi Kaupiko, a fisherman in the traditional Hawaiian fishing village of Miloli‘i on the Big Island, said in the Earth Justice press release. “These reefs are vital to our way of life and to the health of our entire Paeʻāina [Hawaiian Islands].”

Aquarium fishermen have long argued that responsible practices and marine protected areas, which cover roughly 35% of all West Hawai‘i waters where take of any kind is prohibited, keep the practice sustainable. They’ve argued to little success over the last three years that essentially banning the industry creates a significant financial hardship for those who make their livings as part of it.

While the First Circuit Court’s ruling will again hinder aquarium fishers’ push to keep their industry viable in West Hawai‘i, it won’t do so immediately.

The court recognized in its ruling Friday that shutting off access to aquarium fishing immediately for those with valid CMLs would “…cause economic hardship to aquarium fishers, their families, employees, and vendors.”

Due to this consideration, fishers will be allowed to carry out the practice until their permits run out, which will happen one year after the initial issuance. At that point, the fishers will need to reapply and will be subject to new environmental regulations that put their permits in serious doubt.

The DLNR said in a press release Monday that it will take immediate steps to comply with the court’s ruling.