Court closes loophole that allowed industry to illegally extract over half a million marine animals from Hawai‘i reefs in the last two years.
Scuba diver Rene Umberger knows that the aquarium fishing industry is a deadly business.
And not just for the fish.
While out on a diving and snorkeling expedition in 2014 to document destructive fishing activities off the Kona Coast on the Big Island of Hawaiʻi, she was attacked by a man collecting aquarium fish on a nearby reef.
The man, who had his back turned when she first came upon him, began charging at Umberger after realizing she was filming him.
Before she knew what was happening, the man ripped off Umberger’s breathing device, cutting off her air supply 50 feet below the water. For an inexperienced diver, the aggressive move could have been fatal. Luckily, Umberger, who’s had more than 10,000 dives over her 30-year career, was able to quickly replace her gear and safely surface as the man threateningly gestured toward her.
“Never in a million years did I think this guy would try and kill me,” says Umberger.
The underwater assault underscores a turbulent battle that’s been brewing for years over the impacts of aquarium fishing on the local environment.
Citizen and conservation groups concerned about these impacts scored a big win in 2018, when the state’s Environmental Court ruled that all recreational permits are now void. The plaintiffs argued that, because government regulators blindly handed out these permits to recreational fishers without asking what each permittee intended to take and where, they violated environmental review laws and the duty to conserve public trust resources for future generations. The decision invalidated about 131 permits, each of which authorized the capture of almost 2,000 fish per year. The ruling followed a Hawaiʻi Supreme Court finding that Hawaiʻi’s Department of Land and Natural Resources can’t allow more commercial aquarium fishing until it studies the industry’s environmental impact.
These two court decisions were huge wins for those concerned about the environmental and economic damage caused by people removing hundreds of thousands of fish and invertebrates from Hawaiʻi’s waters every year. Currently, there is no limit on the number of fish and invertebrates taken or the number of permits issued, says Earthjustice attorney Summer Kupau-Odo, who represented Umberger and others in the case.
“The law demands, and Hawaiʻi’s people have every right to expect, more from the agency charged with conserving our natural resources,” says Kupau-Odo. She adds that, because regulators don’t validate reported catch by the industry, the catch per year might actually be in the millions. For recreational fishers, the total catch could be up to 250,000 annually.
In January 2020, Earthjustice went back to court to enforce the previous rulings and invalidate a loophole that the Department of Land and Natural Resources created to allow commercial collection to continue everywhere except West Hawai‘i, using alternative types of gear. Under this illegal loophole, the aquarium trade had collected more than half a million animals in two years since the earlier court rulings. In November 2020, the state Environmental Court ruled definitively in our favor that all commercial aquarium collection requires environmental review. All fishing licenses that allow commercial aquarium collection are invalid and illegal until they comply with Hawai‘i’s environmental review laws.
“The court made clear what should have been obvious to the state in the first place: our environmental review laws require comprehensive review of the aquarium trade’s impacts statewide, not just a subset of gear,” said Earthjustice attorney Mahesh Cleveland, who represented the coalition during this recent legal battle. “We’ll remain vigilant in ensuring this recent court ruling is enforced and that the state holds poachers accountable. It’s time to allow Hawai‘i’s irreplaceable reefs to recover.”
Though stocking your home aquarium with exotic, colorful critters like yellow tang seems innocuous, capturing unsustainable amounts and selling them on the world market robs Hawai‘i of a public resource for private gain. Some Native Hawaiians, like Earthjustice clients and father-son duo Willie and Ka’imi Kaupiko, depend on catching fish like the Achilles tang to feed themselves and their families.
“When I go out fishing, I hardly see any of the types of fish collected by the aquarium trade out on the reefs anymore, especially in areas open to collection,” says Ka’imi, who volunteers at a school in West Hawaiʻi to teach kids traditional and responsible fishing practices. “I see aquarium collectors going to collect at the same spots over and over again.”
In addition to depriving Native Hawaiians of a local resource, aquarium fishing damages reefs by removing herbivorous reef-dwellers like wild fish that eat coral-smothering algae. This key ecological service is especially critical to mitigate the impacts of climate change, including warm-water-induced bleaching.
“I know many people who have stopped coming to Hawaiʻi to dive and snorkel entirely because the reefs aren’t what they used to be,” says Umberger. “It’s depressing.”
After years of trying (and failing) to get the state to strengthen regulations on the aquarium fishing industry, Umberger came to Earthjustice because, she says, “Everybody who loves the environment in Hawaiʻi knows about your organization.”
In 2012, Earthjustice took on the case, suing the Department of Land and Natural Resources for failing to use its power under existing state laws to assess the aquarium fishing industry’s impacts. Throughout the legal battle, the agency refused to acknowledge the trade’s impacts or even its duty to study them. At the same time, Earthjustice challenged the regulatory agency’s reckless handling of recreational fishing permits. Now that the courts are forcing the agency to rein in both commercial and recreational aquarium fishing, some of the state’s most damaged reefs may soon have a chance to rebound.
“I’m so grateful to Earthjustice,” says Umberger. “Many aspects of the ocean may currently be in decline, but these wins show that our efforts do make a difference.”
This piece was originally published on October 17, 2017, and updated on December 22, 2020, to reflect the most recent win.
This article is the intellectual property of Earthjustice (https://earthjustice.org/blog/2017-october/hawai-i-s-supreme-court-halts-commercial-aquarium-fishing-protecting-reefs-and-native-hawaiians)and LegalEase is making it available on this site purely as part of our efforts to advance awareness about pro bono activities. LegalEase does not profit from sharing this content and is open to removing the content upon request by its copyright owners.