Umberger v. Dep't of Land & Natural Res.

403 P.3d 277

Rene UMBERGER, Mike Nakachi, Ka'imi Kaupiko, Willie Kaupiko, Conservation Council for Hawai'i, The Humane Society of the United States, and Center for Biological Diversity, Petitioners/Plaintiffs-Appellants,

v.DEPARTMENT OF LAND AND NATURAL RESOURCES, State of Hawai'i, Respondent/Defendant-Appellee.

SCWC-13-0002125.

Supreme Court of Hawai'i.

SEPTEMBER 6, 2017

Paul H. Achitoff and Summer Kupau-Odo, Honolulu, for petitioners.

William J. Wynhoff, Honolulu, for respondent.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

For a nominal fee per year, the Department of Land and Natural Resources (DLNR) authorizes the collection of fish or other aquatic life for aquarium purposes (aquarium collection) by issuing permits pursuant to Hawaii Revised Statutes (HRS) § 188-31 (2011) and its administrative rules. Subject to certain terms and conditions contained in the permit and restrictions provided by statutes and administrative rules, each commercial aquarium collection permit authorizes the extraction of an unlimited number of fish or other aquatic life annually from the State's coastal waters. DLNR also issues recreational aquarium collection permits that authorize an annual catch limit for each permit of almost 2,000 fish or other aquatic life. The fundamental issue presented in this case is whether aquarium collection pursuant to permits issued under HRS § 188-31 and DLNR's administrative scheme is subject to the environmental review procedures provided in the Hawai'i Environmental Policy Act (HEPA). We hold that commercial aquarium collection under HRS § 188-31 and DLNR's administrative rules is subject to HEPA's requirements. We further hold that the record is not adequate for this court to determine whether recreational aquarium collection may be exempt from HEPA. Accordingly, we remand this case to the circuit court for further proceedings to resolve the issue of whether recreational aquarium collection under HRS § 188-31 and DLNR's administrative rules is also subject to HEPA.

I. FACTS AND PROCEDURAL HISTORY

Petitioners Rene Umberger, Mike Nakachi, Ka'imi Kaupiko, and Willie Kaupiko identify themselves as concerned Hawai'i citizens, avid divers, and subsistence fishermen. Petitioner Conservation Council for Hawai'i is a nonprofit organization based in Hawai'i with approximately 5,500 members worldwide whose mission is to protect native Hawaiian species and to restore native Hawaiian ecosystems for future generations. Petitioner Humane Society of the United States, a national nonprofit organization with over 11 million members, is dedicated to the protection of wildlife and habitat. Petitioner Center for Biological Diversity is a nonprofit organization dedicated to preserving, protecting, and restoring biodiversity, native species, ecosystems, and public lands; the organization has approximately 450,000 members, many of whom live in Hawai'i. Respondent Department of Land and Natural Resources (DLNR) is the state agency that holds the statutory authority to issue permits for aquarium collection.

On October 24, 2012, Petitioners filed a complaint for declaratory judgment and injunctive relief in the Circuit Court of the First Circuit (circuit court) specifically challenging fifty aquarium collection permits that DLNR had issued in the 120 days before the filing of the complaint.¹ The complaint sought (1) a declaration that DLNR is in violation of HEPA, chapter 343 of the HRS, for failing to complete the HEPA review process prior to approving the challenged permits; (2) a declaration that DLNR's issuance and renewal of these permits without complying with HEPA is invalid and illegal; (3) an injunction enjoining collection under the challenged permits until DLNR fully complies with HEPA; and (4) an injunction enjoining DLNR from approving, renewing, or issuing any aquarium collection permits prior to completing a HEPA review of the issuance of the challenged permits.² DLNR filed an answer requesting a dismissal with prejudice of Petitioners' complaint.

Thereafter, DLNR moved for summary judgment, arguing that (1) DLNR's practice of not requiring environmental review of applications for aquarium collection permits is entitled to deference and (2) environmental review is not required for aquarium collection permits because there is no action initiated by an applicant requiring agency approval (applicant action).³ In support of DLNR's motion for summary judgment, Alton K. Miyasaka, an aquatic biologist in DLNR's Division of Aquatic Resources, submitted a declaration. Miyasaka averred that "[a]nyone who applies for a permit pursuant to [HRS] § 188-31 and who goes through the above process receives a permit" and that DLNR "does not have and does not exercise discretion with respect to the permits." Thus, according to Miyasaka, the process does not involve discretionary consent and there is no applicant action.

Petitioners opposed DLNR's motion for summary judgment, contending that (1) DLNR's failure to comply with HEPA prior to issuing aquarium collection permits is not entitled to deference because the aquarium collection permitting statute is clear and not subject to agency interpretation and (2) aquarium collection is a HEPA "action" subject to DLNR's discretionary consent.

Petitioners cross-moved for summary judgment, contending that (1) HEPA mandates environmental review of aquarium collection permits and (2) the issuance of aquarium collection permits is subject to DLNR's discretionary consent. In support of Petitioners' summary judgment motion, they attached (1) the declarations of Gail Grabowsky, Petitioner Umberger, Petitioner Nakachi, Petitioner Ka'imi Kaupiko, Petitioner Wilfred Kaupiko, Marjorie F.Y. Ziegler, Inga Gibson, Miyoko Sakashita, and Dane Enos; (2) excerpts of The Report to the Twenty-Fifth Legislature on the Findings and Recommendations of Effectiveness of the West Hawai'i Regional Fishery Management Area [hereinafter The Report to the Twenty-Fifth Legislature ]⁴ ; (3) excerpts of Hawaii's State of the Reef, published by DLNR's Division of Aquatic Resources⁵ ; and (4) DLNR's approval of Disney Aulani's request for a special activity permit to collect aquarium fish for a period of one year in order to stock a saltwater swimming pool.

Gail Grabowsky, an associate professor at Chaminade University and the Director of the University's Environmental Studies Program,⁶ stated that commercial aquarium collectors self-report to DLNR the type and quantity of marine animals that they collect and that this practice results in underreporting because commercial collectors "may either fail to turn in catch reports or inaccurately quantify their catch." Grabowsky explained that "[a]quarium collectors utilize modern and ever-improving technologies, like scuba equipment, highly camouflaged wetsuits, nitrox (a mix of nitrogen and oxygen, usually with a higher-than-normal level of oxygen to extend dive time), GPS systems, and underwater scooters, to increase their ability to locate aquarium fish."⁷

According to Grabowsky, "although aquarium collection is prohibited along 35% of the west coast of the island of Hawai'i, less than 1% of the remaining area around the Main Hawaiian Islands is protected."⁸ Grabowsky opined that the drastic differences in species abundances between well-protected areas and those that are not "reveal[ ] that aquarium collection is removing and having detrimental effects on species that play important ecological roles in reef ecosystems." Because the most heavily fished species are herbivorous algae eaters, Grabowsky stated that their removal from the reef ecosystem decreases the reef's ability to withstand habitat degradation and could result in an algal-dominated reef. Grabowsky found that "the most greatly affected species are those that have been heavily exploited." Grabowsky's survey of relevant studies indicated "that certain rare, vulnerable species are under intense collection pressure, and the effects of collection on many of their populations [are] unknown."⁹

Grabowsky explained that aquarium collection typically focuses on juvenile fish because they are smaller and more aesthetically pleasing and thus more popular to customers. According to Grabowsky, this "can result in top-heavy age distributions of many of the heavily collected species on reefs, and means that there are fewer juveniles in reef ecosystems that are able to grow up to reproduce as adults."

Based on her research and review of relevant scientific literature, Grabowsky concluded that "aquarium collection is having a detrimental effect on fish populations around O'ahu and in other areas of the state," it "disrupts the ecosystems and makes them less able to respond to other stressors," and "it removes animals that occupy important and unique ecological niches." Grabowsky opined that prohibiting collection in certain areas does not adequately address the problem in that, "while it may slow the disappearance of the fish species and reef degradation, ... it will not prevent it." Finally, Grabowsky declared that the "data showing that the current permitting system and designation of protected areas adequately protects the reef ecosystems is lacking."

Petitioner Umberger also submitted a declaration stating that she had been diving professionally since 1983 and had done at least 10,000 scuba dives around the Main Hawaiian Islands and in various international locations. Umberger stated that, based on her observations during her dives through the years, fish species that are highly prized by the aquarium trade have abruptly disappeared from a lot of dive sites.¹⁰

Based on Umberger's experience diving and snorkeling along the west coast of the island of Hawai'i, she declared that there is a marked difference in the condition between those reefs that are open to collection and those that are not: reefs open to collection have fewer colorful and aesthetically pleasing fish and...