HONOLULU — The Hawaii Supreme Court on Wednesday ruled 4-1 that the pet industry’s environmental review of commercial aquarium fish collection in West Hawaii is legally adequate, permitting the state Board of Land and Natural Resources to consider reopening nearly the entire West Hawaii coastline to this practice — which has historically removed hundreds of thousands of native fish from the state’s reefs each year.
The court’s ruling in Kaupiko v. BLNR effectively ends the de facto ban on commercial collection that had been in place since a 2017 Supreme Court decision required public disclosure and analysis of the aquarium pet trade’s impacts; however, the injunction was lifted last year.
“We are very concerned that today’s ruling will open the floodgates to destructive levels of commercial aquarium harvesting in Hawai‘i’s waters,” Rene Umberger, Executive Director of For the Fishes, said in a statement. “Removing fish from our reefs, which face a host of other dangers from pollution to climate change, threatens the delicate ecology that depends on these aquatic species. It’s disappointing that the court is upholding an insufficient environmental impact statement that fails to disclose and mitigate against known environmental consequences of this industry.”
According to Earthjustice spokesperson Mahesh Cleveland, approximately 250,000 fish are removed annually from West Hawaii reefs to be sold for use in aquariums in mainland homes, restaurants and hotels.
Cleveland noted that testimony has been received from around the world, including Singapore, the Philippines and China, where people also seek to keep native Hawaiian fish in captivity.
The court’s approval of the industry’s impact statement effectively permits the board to resume issuing licenses for commercial collection in West Hawaii.
“They go out with scuba tanks on boats, anywhere from 30 to 60 feet, and surround schools of juvenile fish with fine mesh nets and go through the coral and either break it apart or poke them with sticks to chase the fish out into the nets,” he said. “They basically grab these little fish one by one, stick them in bags, and bring them to the surface. Oftentimes, they will take needles down with them and pierce the fish’s air bladders so that they can surface them more quickly, avoiding the decompression that happens to divers. They then bring the fish into shore, clip their fins, put them in plastic bags, and starve them for two days. Then they stick them in boxes and put them on planes to ship them off to the mainland, where they are received.”
In June 2020, the first Environmental Impact Statement was rejected. A revised EIS reached a tie vote in May 2021 and was accepted by default.
Earthjustice — representing Willie Kaupiko, Ka‘imi Kaupiko, Mike Nakachi, For the Fishes, the Center for Biological Diversity and Kai Palaoa — challenged this acceptance in state environmental court, but in 2022, the court ruled that the second revised EIS was acceptable.
Following this, Earthjustice filed an appeal, and the case was argued before the Hawaii Supreme Court in December. The court’s ruling on Wednesday stated that the EIS adequately provides information for the board to consider.
“We believe in the power of the government to work together with our communities to find long-term and pono solutions for our fishery management issues,” Ka‘imi Kaupiko of Milolii, who also advocated successfully alongside his neighbors and family to establish a community-based subsistence fishery area fronting their village in 2022, said in a statement.
“But with the Court’s decision approving this impact statement, how can we ever be sure that these processes work for the people of Hawai‘i and our future generations?”
The ruling, however, does not change the status of permit approvals. While the EIS provides necessary information, it does not mandate the approval of permits. The board retains the discretion to deny permits to uphold its duties under the public trust doctrine and to protect traditional and customary Native Hawaiian rights as required by the state constitution.
The state Department of Land and Natural Resources has continued to advance with commercial collection permitting. On Friday, the board was prepared to approve terms and conditions for future permits, but this decision was contested by West Hawaii community members, effectively pausing any permit approvals until the contested proceeding is resolved.
The public has strongly opposed the permitting proposal, and the board will ultimately decide whether to grant or deny the community’s contested case request and any permits after reviewing further public input.
“We feel strongly that these permits should not be issued if they are based solely on past take rather than on science. We also believe that the state’s obligation to identify and protect traditional and customary Native Hawaiian practices is paramount, and this obligation is unrelated to the Supreme Court decision or the EIS,” Cleveland said. “Our clients and allies have no intention of backing down. The Supreme Court ruling does not change our position, our advocacy, or the importance of ensuring that DLNR does not prioritize commercial interests over the needs of Hawaii citizens, including Native Hawaiians.”
