After more than three years, the question of whether commercial aquarium fishing has a future in Hawai‘i may finally be answered Friday.
The Board of Land and Natural Resources will discuss at its Friday meeting a series of proposed rules that would allow limited aquarium fishing in waters on west coast of Hawai‘i Island, officially called the West Hawai‘i Regional Fishery Management Area.
That discussion could end with the BLNR adopting those rules, thereby reactivating a moribund commercial aquarium fishing industry. No such fishing has been permitted in West Hawai‘i since a 2017 Hawai‘i Supreme Court verdict found that issuing commercial aquarium fishing permits statutorily must involve an environmental review process. That verdict also led the BLNR to suspend awarding aquarium fishing permits anywhere in the state in 2021.
On the other hand, Friday’s meeting could also end with the BLNR rejecting the proposed rules and instead ordering the Division of Aquatic Resources to instead draft new rules that would formalize a statewide ban on commercial aquarium fishing.
If the BLNR chooses the latter option, it would be the second time the board has approved rulemaking to ban commercial aquarium collection. In 2023, several environmental groups petitioned the board to enact such a ban, which would make the board’s 2021 de facto prohibition a de jure one.
In December of 2023, the BLNR unanimously voted to approve that petition to initiate that rulemaking process. However, there was later confusion on whether the BLNR had the authority to make such a prohibition merely through the board’s administrative rulemaking process.
“And so, based on that legal advice from the attorney general, the [Department of Land and Natural Resources’ Division of Aquatic Resources] formulated rules in collaboration with the commercial collectors to permit them to resume collecting,” Mahesh Cleveland, attorney for environmental group Earthjustice, told Aloha State Daily.
Earthjustice in 2024 initiated a legal proceeding that — after an appeal — requested that the state Environmental Court review whether the BLNR actually can impose a prohibition on commercial aquarium fishing. In April of this year, the Environmental Court concluded that the BLNR’s 2023 decision does not conflict with state statutes.
Consequently, Earthjustice and other groups have requested that the Board revisit the 2023 decision and decide, once and for all, whether the statewide ban goes through or not.
“We are feeling good about our chances, but you never really know until you know,” Cleveland said, adding that the makeup of the board has changed since the 2023 decision.
On the other hand, Cleveland said that the BLNR’s decision last week to reject a proposal to lease out East Maui water rights for 30 years may be a bellwether for its decision on Friday.
“They are empowered by and guided by this concept of public trust, it’s in our state constitution,” Cleveland said. “They need to protect and manage natural resources for the benefit of present and future generations. There’s no protection in our constitution for commercial interests in natural resources.”
However, if the board votes to uphold the 2023 prohibition, it won't go into effect right away. Rather, the Division of Aquatic Resources must draft rules that impose such a prohibition, which will then go through another public hearings process before, eventually, the BLNR will vote again on whether to approve them.
Should the BLNR instead choose to reopen commercial aquarium fishing, then the rules as proposed would allow the DLNR to grant seven aquarium fishing permits per year — with a $100 application fee — to applicants who can prove they possess the expertise and equipment necessary to “maintain fish alive and in reasonable health.”
Permit holders would also be limited to harvesting five fish species, with collective catch limits for each species shared among each permittee.
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