Via Email
Date: May 21, 2020
To: Chair Case and the Board of Land and Natural Resources (BLNR)
From: For the Fishes, Center for Biological Diversity, The Humane Society of the United States,
Moana ‘Ohana, The Kaupiko ‘Ohana from Miloli‘i, and Kai Palaoa
Re: Meeting of the Board of Land and Natural Resources, on May 22, 2020, at 9:00 am; Item F.2.
Determination of Whether the Final Environmental Impact Statement (FEIS) Complies with
Applicable Law and Adequately Discloses the Environmental Impacts of Proposed Issuance of
Commercial Aquarium Permits, Commercial Marine Licenses, and West Hawaiʻi Aquarium Permits
for the West Hawaiʻi Regional Fishery Management Area
As conservation and animal protection organizations, Native Hawaiian subsistence fishers and
cultural practitioners, and individuals with strong interests in preserving the State of Hawai‘i’s
natural resources and protecting its delicate coral reefs, we strongly urge you to reject the Pet
Industry Joint Advisory Council’s (PIJAC’s, or “Applicant’s”) Final Environmental Impact Statement
(EIS) purporting to analyze the environmental impacts of commercial aquarium fish collection by
10 permittees in the West Hawai‘i Regional Fishery Management Area (WHRFMA). 1
The EIS fails to meet all of the criteria for acceptance as defined in HRS 343-2 by failing to fulfill the
definition of an environmental impact statement, failing to adequately describe identifiable
environmental impacts, and failing to satisfactorily respond to comments received during the
review.
The EIS fails to fulfill the definition of “environmental impact statement” in a number of ways,
which include, but are not limited to a failure to disclose the environmental effects of the proposed
Office of Environmental Quality and Control, The Environmental Notice at 4 (Apr. 23, 2020),
http://oeqc2.doh.hawaii.gov/The_Environmental_Notice/2020-04-23-TEN.pdf; PIJAC, Final Environmental
Impact Statement for the Issuance of Commercial Aquarium Permits for the West Hawaii Regional Fishery
Management Area (2020), http://oeqc2.doh.hawaii.gov/EA_EIS_Library/2020-04-23-HA-FEIS-Hawaii-IslandCommercial-Aquarium-Permits.pdf.
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 action, as well as the effects on the economic and social welfare, and the cultural practices of the
community and State; a failure to propose measures to minimize adverse effects; and, a failure to
propose adequate alternatives.
The EIS’s failure to satisfy the acceptance criteria are primarily the result of its fatally flawed
conclusion that the proposed action would cause no significant adverse effects and the resultant
insufficient disclosures and descriptions of the direct and cumulative impacts of the action in the
affected area(s). This grave error was reflected in every meaningful aspect of the document
including the main requirement to adequately disclose and describe the identifiable environmental
impacts.
These insufficiencies resulted in improper evaluations of HEPA significance criteria and prevent the
BLNR from considering fully the environmental factors involved in the proposed action.
Therefore, the EIS must be rejected because it is required to “fully declare the environmental
implications of the proposed action and discuss all relevant and feasible consequences of the
action,” but fails to do so.2 As described further below, documentation of significant impacts is
included in several figures contained within the EIS, however they are not declared.
The EIS must be rejected because it is required to propose mitigation measures “to avoid, minimize,
rectify, or reduce impact, including provision for compensation for losses of cultural, community,
historical, archaeological, fish and wildlife resources . . . ,” and to include “mitigation measures to
reduce significant, unavoidable, adverse impacts to insignificant levels, and the basis for
considering these levels acceptable,” but fails to do so.3
The EIS must be rejected because it is required to consider alternatives that “could attain the
objectives of the action. . . while minimizing some or all of the adverse environmental effects, costs,
and risks,” but it fails to do so.4
The EIS must be rejected because it is required to “satisfactorily respond to comments,” but fails to
do so.5 Having entered into this process in good faith, we believe that had the comments we
submitted during the consultation and public review phase been taken seriously, the insufficiencies
would have been addressed.
The end result is an EIS that is as deeply flawed and entirely inadequate under the Hawai‘i
Environmental Policy Act (HEPA, Haw. Rev. Chapter 343) and its implementing regulations, as it
was in its first form as a Draft Environmental Assessment. The EIS still fails to address these and
other notable flaws that we outlined in our prior comments:
•

The EIS fails to analyze the impacts of collection over time (i.e. the expanded 5-year scope of
the analysis, beyond one year, is still inadequate);

HAR 11-200-16
HAR 11-200-17 (m)
4 HAR 11-200-17 (f)
5
HAR 11-200-23
2
3

2

 •

The EIS fails to accurately analyze the environmental consequences (i.e. direct, indirect, and
cumulative impacts) of unlimited collection of aquatic life to biological, cultural, and
socioeconomic resources in the WHRFMA;

•

The EIS fails to accurately analyze the environmental consequences (i.e. direct, indirect, and
cumulative impacts) of unlimited collection of aquatic life to biological, cultural, and
socioeconomic resources in East Hawai‘i and other parts of the State that may be connected
via larval dispersal patterns;

•

The EIS fails to accurately analyze the cumulative impacts of commercial collection along
with recreational collection;

•

The EIS fails to accurately analyze impacts on cultural resources;

•

The EIS fails to accurately analyze the alternatives presented;

•

The EIS fails to accurately analyze the impacts of collection practices harmful to corals;

•

The EIS relies on inaccurate, misleading, and incomplete data;

•

The EIS fails to propose and analyze mitigation measures; and

•

The EIS fails to adequately incorporate input of Native Hawaiian cultural practitioners,
experts, affected citizens and consulted parties.

The Applicant’s Preferred Alternative does not ensure that commercial aquarium fish collection is
lawful, responsible, and sustainable for any of the White List fish species from nearshore habitats in
the WHRFMA nor for any species taken elsewhere in the state where collection is allowed under the
current geographic scope of the aquarium permits. The EIS’s continued conclusion that the
aquarium fishery in the WHRFMA has “no significant impact” on targeted reef fish species, coral
reefs, and the human communities that rely on them is unsupportable. The EIS fails to accurately
evaluate the true direct, indirect, cumulative, short-term and long-term effects of the Preferred
Alternative and fails to propose any proper mitigation.
Failure to Adequately Disclose Environmental Effects
At the foundation of every determination made in the EIS is the flawed assertion that “. . . the annual
collection of [the White List] species would be less than 2% of the island-wide population [on
Hawai‘i Island],” and that “commercial aquarium collection likely has minimal impacts on
populations in general.”6 This generalized and extremely broad focus results in an EIS that grossly
miscalculates and underreports the potential effects and environmental consequences of the
proposed action in the WHRFMA Open Areas which is where aquarium collecting would actually
occur (i.e. the project sites). The FEIS attempts to justify the generalizing with several statements,
including:

6

EIS at ii

3

 “Permitted commercial aquarium fishing has been a part of the socioeconomic, cultural,
physical, and biological resources for decades and is considered a part of the baseline
condition of the affected environment;” and,
“The evaluation includes past use and potential impacts by the commercial aquarium fishery
because it has been a part of the baseline condition of these resources since the late 1940s.” 7
These positions are akin to an EIS for large scale land development in a conservation district stating
that buildings near and far have been a part of Hawai‘i ’s landscape for hundreds of years and so the
proposed project will have no significant impacts because buildings are part of the background
environment.
This is a ridiculous position that would result in a complete failure to accurately evaluate the direct,
indirect and cumulative impacts of the proposed action – as it does here. This generalization
minimizes the impacts of aquarium collecting and leads to the erroneous conclusion of no
significant impact.
HEPA requires that “agencies shall consider the sum of effects on the quality of the environment
and shall evaluate the overall and cumulative effects of an action.”8 Furthermore, the Agency must
consider “both primary and secondary” consequences, “and the cumulative as well as short-term
and long-term effects of an action.”9 Notably, “cumulative impact” is defined as the impact resulting
from “the incremental impact of the action when added to other past, present, and reasonably
foreseeable future actions,” and “[c]umulative impacts can result from individually minor but
collectively significant actions taking place over a period of time.”10
The EIS concludes that “no significant adverse direct or indirect biological resource impacts are
anticipated under any of the five alternatives under consideration. Significant cumulative impacts
are anticipated; however, commercial aquarium collection is a less than significant factor in the
cumulative impact.”11 As detailed throughout this document, these statements are patently and
demonstrably false.
Failure to Disclose Direct Impacts
The direct impacts of aquarium collection occur when a permittee captures fish on a reef.
Depending on the abundance of that species on that reef, the impact of that one action may be small
or large. For species that naturally occur in low numbers, such as Tinker’s Butterflyfish, Flame
Wrasse, Hawaiian Longfin Anthias, and Psychedelic Wrasse, one collector can remove the entire
population of a species in one day. Such a direct impact was not disclosed or described.

EIS at 17 and 23
HAR § 11-200-12.
9 HAR. § 11-200-12.
10 HAR. § 11-200-2.
11 EIS at 138
7
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 For species that naturally occur in higher numbers, the impact, whether small or large, of that one
day of collection by a single collector will combine with the impacts of additional days, and/or
additional collectors, and/or the impacts from other areas or other types of removal, and
accumulate over time. This cumulative impact was not disclosed or described.
Failure to Disclose Indirect Impacts
Collecting pressure also contributes to indirect impacts. These indirect impacts may manifest as
reduced abundance of targeted species elsewhere in the WHRFMA, including Open Areas, FRAs
MPAs, in East Hawai‘i , or elsewhere in the state. These indirect impacts may be driven by heavy
collection pressure combined with low levels of recruitment, larval connectivity and dispersal
patterns that are impacted by fish abundance in the Open Areas, heavy collecting on boundary
areas, or other action. These indirect impacts were not adequately disclosed or described in the EIS.
An example of indirect impacts may be found in the DAR and WHAP data documenting yellow tang
population trends in the WHRFMA (Fig. 1). In 2003 collection pressure increased rapidly, nearly
doubling the annual average of the prior 10 years by 2006 when it peaked at 382,921.12 Collection
pressure remained high in the following years, and its impact was reflected in yellow tang
abundance that rapidly declined not just the Open Areas, but in the FRAs and MPAs, as well (Fig. 1).
Other indirect impacts result when the effects of collection pressure interact with the reproductive
strategies of targeted species. Hawai‘i’s ocean currents carry and disperse fish larvae to coral reefs,
both near and far. Most fishes on Hawai‘i’s reefs are the result of other fishes upstream of that
reef.13 The currents and conditions that control larval connectivity and dispersal processes are
complex. The larvae of some species are able to travel between islands, while others do so to a
lesser extent. For example, in one study, some yellow tang larvae on Hawai‘i Island travelled on
ocean currents for 15 km before settling on a reef while others traveled 184 km.14
Recent research into two species of small bodied surgeonfishes, including kole which is heavily
targeted by the aquarium trade, has determined that populations of these fishes are genetically
distinct on each of the main Hawaiian Islands. This means that, for at least these two species, there
is little genetic mixing between islands, and once species are depleted on any given island, there is
no other source for population replenishment. Further, connectivity and dispersal studies on the
island scale for certain species have identified important spawning source areas that are essential
for maintaining populations on other reefs across the island.
Regardless of whether larval connectivity exists mainly intra-island or extends inter-island,
reduced populations of reef fishes in their source areas will seriously impact reef fish abundance in
their downstream, sink reefs, and thus the entire island.15 The EIS fails to account for this critically
important and highly significant indirect impact. The precautionary approach requires the
determination of source areas for the 40 White List species on Hawai‘i Island and the establishment
Williams et al. (2009); DLNR catch reports
Noland (1978); Christie et al. (2010); Coleman (2019).
14
Christie (2010).
15
Coleman (2019).
12

13

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 of protections for those populations to ensure local species survival, which was not provided in the
EIS.
Failure to Disclose Cumulative Impacts
As described above, one day of collection by a single collector will combine with the impacts of
additional days, and/or additional collectors, and/or the impacts from other areas or other types of
removal, and accumulate over time.
The cumulative impacts of the action are readily apparent, undeniably substantial, and significant
according to numerous studies and papers, and even including the EIS, though they are not
disclosed as such in the statement.16 For example, the EIS includes some information that is less
generalized and more specific to the affected area. The WHRFMA Open Areas in various tables, such
as 5-4 and 5-8, present population trend data and disclose abundance levels of the White List
species in each of the three management areas, Open, FRA and MPA.17 The data presented in those
figures are the population trends for each of the White List species. Determination of the impact of
collection is a simple matter of comparing the population density (i.e. abundance) in the Open areas
with that in the closed areas. Strikingly, that disclosure is ignored entirely for all species showing
significant impacts and is only briefly mentioned for species showing little to no impact. 18, 19
Otherwise, the discussion of the data presented in those tables is focused on the positive impact of
the absence of aquarium collection in the FRAs rather than on the negative impact of the presence of
aquarium collection in the Open Areas.20
In another example, the yellow tang population trend data from the tables mentioned above are
plotted on a graph where the impact of aquarium collecting becomes visually apparent in the gaps
between the red and blue lines representing the protected areas, and the green one representing
the Open Areas (Fig. 1).
In the Open Areas, aquarium collecting has depleted the natural abundance of yellow tangs by
60%, on average, every year since at least 1999 when DAR and the West Hawai‘i Aquarium Project
(WHAP) began their extensive surveys in the WHRFMA (Fig. 1).21 However, inexplicably, the EIS
fails to disclose and discuss this major impact.

Tissot and Hallacher (2003); Walsh et al. (2010); Walsh et al. (2015); Williams et al. (2009).
EIS at 101, 111
18 Note: the data in the figures do not show the true impact of aquarium collecting because Open Area
abundance is inflated by the inclusion of 2018 data, when no legal aquarium collection occurred and Open
Area populations surged.
19 EIS at 105, 106, 127, 128
20 EIS at 100, 110
21 EIS at 101, 103, 111
16

17

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 Fig. 1: Adapted from DAR data which shows the population trend (density) over time in the MPA, FRA,
and Open Areas, as well as the annual yellow tang recruits (YOY) which are not included in the trend
line data.22

Further evidence of the impact is found in the significant increases in yellow tang abundance that
have occurred in affected areas once aquarium collecting pressure has been removed. This has
happened twice since 1999 when the WHRFMA was established. The first time happened within the
newly established FRAs where within 4 years of protection, yellow tang abundance increased to
levels similar to those in the MPAs. Between 1999 and 2007 yellow tang abundance increased by
72% in the FRAs, remained stable at the MPAs and declined by 45% in the Open Areas (Figure 1). It
was precisely because of this substantial increase that he FRAs were deemed significant in their
ability to restore fish populations that had been heavily depleted by aquarium collecting, such as
yellow tangs and kole.23
The second increase in yellow tang abundance occurred after the November 2017 court order that
invalidated the aquarium permits pending HEPA review, when yellow tang abundance in the areas
newly closed to aquarium collecting experienced the greatest population surge ever documented
(Fig. 1).
The EIS also insufficiently considers the cumulative impact of aquarium collecting on the coral reef
ecosystem, especially as it relates to climate change. Algae eating fish, known as herbivores, are
critically important to the very survival of Hawai‘i’s coral reefs, but their abundance and biomass is
at critically low levels on many reefs in the WHRFMA.24

EIS at 103
Williams et al. (2009).
24 Asner (2020).
22

23

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 Food fishing and aquarium collecting have reduced the herbivore biomass in West Hawai‘i by
approximately 70%, with commercial aquarium collecting accounting for 27% of the total.25 97% of
the fish taken by the aquarium trade in West Hawai‘i are herbivores.26 Therefore, the contribution
of aquarium collecting to declining herbivore biomass is significant and, as such, requires a
thorough and accurate evaluation under HEPA, which it does not receive in the EIS.
Failure to Adequately Analyze Long-Term Impacts
The EIS unlawfully limits its analyses to the time period of five years, and thus, fails to accurately
consider the impacts of one-year collection permits cumulatively with other “past, present, and
reasonably foreseeable actions” “over a period of time.” The reasoning behind this 5-year period is
that it coincides with a legally required report to the legislature, the Findings and
Recommendations of Effectiveness of the West Hawai'i Regional Fishery Management
Area (WHRFMA), which is produced every five years and which, notably, primarily documents the
effectiveness of the absence of aquarium collecting to restore depleted populations of targeted
species in the Fish Replenishment Areas (FRAs) closed to aquarium collecting since Dec. 31, 1999. 27
The EIS notes that each permit lasts only one year, and therefore a new HEPA analysis would need
to be completed on an annual basis. However, the relatively short time period of the activity itself
does not nullify HEPA’s clear requirement for considering the long-term effects of that activity. 28
Stating that the Agency can simply reevaluate the consequences of a year-long permit after that
year is up entirely contradicts HEPA’s mandate to evaluate the potential consequences of an action
before the Agency authorizes the action.
Additionally, long-term studies by DAR in West Hawai‘i have documented severe depletion and
localized extirpation of once heavily-targeted butterflyfish species and described other aquarium
targeted species as “routinely seen in the 1970’s, now very rare.” 29 Species such as yellow tangs
and other surgeonfishes are very long-lived, with lifespans measuring decades. A 5-year analysis
period is far too short, because they may not reproduce until they are at least 5 years old.
Reliance on Flawed and Inadequate Science and Data
As previously mentioned, fundamental errors in the EIS’s impact analysis resulted in patently false
findings of no significant impacts and improper evaluations of HEPA significance criteria. Those
errors include, but are not limited to, the use of an improper baseline, the minimization of potential
collection rates under the proposed alternatives, and the improper use of an expanded area to
which the EIS incorrectly asserts the direct impacts would apply. A properly conducted EIS would
have focused on impacts to the area(s) where the subject activity is to take place. This EIS is
fundamentally flawed in that it fails to do so. In addition, the EIS ignores the true evidence of

Walsh et al. (2020)
EIS at 99
27 EIS at 83
28 EIS at 17
29 Williams & Walsh (2008)
25
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 impacts, including the most important one: the magnitude of depletion to targeted species in the
areas from which they are taken as determined by a comparison to the baseline.
The use of an improper baseline:
The EIS identifies the project location as the WHRFMA but then uses the geographic scope of the
entire island to measure the impacts of aquarium collecting under the proposed alternatives, which
is a major flaw.
A proper baseline reflects pre-project environmental conditions, and is spatially relevant. Here, a
proper baseline is found in the conservation districts and managed areas within the WHRFMA,
collectively referred to as Marine Protected Areas (MPAs), where aquarium collecting has been
prohibited for nearly 30 years. The WHRFMA MPAs have served as baselines in numerous reports
and papers that seek to document the effects of aquarium collecting on targeted fish populations in
West Hawai‘i by measuring the magnitude of depletion to targeted species in the areas from which
they are taken.
Rather than using the MPAs as a baseline, areas that are free from direct impacts of aquarium
collecting, and comparing them to the Open Areas where direct impacts are found, the EIS uses
catch as a percentage of population to determine impacts. While this method can be used to
describe impacts, it is less accurate and inappropriate for determining impacts under HEPA. The
problems with this method include the use of catch numbers that are self-reported, never validated,
and under-reported, as well as the failure to identify the true rate of the impact, because the
population may be inflated by natural occurrences that occurred in protected areas, as well.
More importantly, the EIS employs the method erroneously by using catch as a percentage of islandwide populations to measure population impacts instead of properly using catch as a percentage of
Open Area populations. The EIS defends the use of island-wide populations by claiming “[they] are
the best metric when measuring population impacts” because of “larval connectivity around the
Island of Hawai'i.” 30
Importantly, larval connectivity between coral reefs serves to highlight areas where indirect and
cumulative impacts of the Applicant’s actions may manifest, because the effects occur “later in time
[and] farther removed in distance”. 31 Larval sources in Open Areas depleted by aquarium colleting
will disperse reduced fish larvae which eventually settle downstream on sink reefs which may be
miles away from source areas. For yellow tangs, most of which are taken when they are less than 2
years old, these effects won’t manifest until years after take has occurred because yellow tangs
don’t mature until they are 4 to 7 years old.
The use of island-wide populations to measure direct impacts from the proposed activity in the
WHRFMA Open Areas is absurd and cannot be justified with larval connectivity. When using catch
as a percentage of population to measure direct impacts, the Open Area populations, at the depths

30
31

EIS at 1716, 1731
HAR 11-200-2

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 where the trade operates and where the fish are taken, must be used, as they are when DLNR uses
this method to describe these impacts in grant reports to NOAA (Fig. 2).
Fig. 2. Population estimates and % of population taken by aquarium collectors of ‘White List’ species. ‘E’
indicates an endemic species, Catch is the average annual aquarium catch over FY ’06-’10, and Population is
an estimate of total numbers of fish in collected Open Areas of hard bottom from 30’-60’ depths. Catch as %
of Population is the % of the species’ population in collected open areas taken annually by aquarium
collectors. 32

When used properly, as in this case, catch as a percentage of population shows that aquarium
collecting has a substantial and significant impact on targeted species. For example, from 2006 –
2014, catch as a percentage of population for yellow tang ranged from 60% to 17% and for Achilles
Tang from 80% to 33%.33 34 Factoring catch-underreporting would increase the apparent impact
even further.
Additionally, though the EIS claims otherwise, these impacts did not result from legally permitted
activities, but rather from illegally issued permits. The actions under those permits have never been
properly reviewed, which underscores the urgent need for proper review now.
While it may be expedient to convert decades of indirect and cumulative impacts into the baseline
condition of the affected environment, erasing them in such a way prevents their proper disclosure,
and prevents a proper and acceptable evaluation under HEPA. Even a casual observer can see how
this serves to minimize and dilute the impacts that are otherwise evident in numerous studies and
reports on the impacts of aquarium collecting in the WHRFMA.

Walsh et al. (2013).
Walsh et al. (2013).
34 EIS at 76
32

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 Inaccurate Projected Levels of Catch
The EIS inaccurately determines the level of impact by comparing the projected annual average
catch of the White List Species by “10 aquarium fishers” to the island-wide populations of those
species, per Tables 5-11 and 5-14.35 As described above, using island-wide populations to
determine levels of impact of aquarium collection in the WHRFMA Open Areas is an apples to
oranges faulty comparison.
Equally faulty is the reference throughout the EIS to “the 10 fishers” where it is used to describe
past and potential future aquarium catch and values that would occur under the alternatives. Per
the EIS “the 10 commercial fishers who are part of this proposed action made up 2 to 8 of the
WHRFMA fishers in any given year from 2000 – 2017.”36
Though DLNR knew the identities of the “14 fishers” during the DEIS comment period, and
therefore was able to provide a breakdown of the actual number of collectors represented each
year, they have been unable to do so for this EIS, claiming they don’t know the identities of the 10
fishers. Nonetheless, the range of “2 to 8” in any given year is highly problematic for determining
the level of impact of the proposed action (even if this flawed methodology were sufficient for doing
so, which as we explain here, it certainly is not), because the past and future average and maximum
rates of collection and impacts are grossly underestimated. For comparison, the actual number of
collectors represented in any given year when there were 14 fishers was 7.6, on average, though
the EIS referred to them as “the 14”.37
Projected levels of catch are also inaccurate because they fail to factor the outer limits of what the
permits allow. For example, yellow tangs historically have accounted for 82% of reported catch in
the WHRFMA. According to the EIS, the maximum annual yellow tang reported catch by some, not
all, of those 10 individuals was 130,152. 38 However, this number is meaningless and serves no
evaluation purpose because 130,152 does not represent the outer limits of what the permits allow
and doesn’t even represent the outer limits of what the collectors might take.
It has been reported that commercial aquarium collectors in the WHRFMA work capturing fish just
3 days a week. 39 There is nothing preventing them from increasing their catch, for example, via
increasing the number of hours and/or days they collect, or via new equipment or technology, in
response to perceived scarcity from, for example, impacts to habitat from storms and climate
change, or, in order to meet the high demand for aquarium reef fish and their increasing market
value.
The absence of take limits means that consumer demand, rather than sound conservation policy
based on environmental review, will continue as the factor determining the abundance of these and
EIS at 119 and 139.
EIS at 23.
37 EIS at 2172 and 2234
38 EIS at 122
39 Stevenson et al. (2011).
35
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 other important reef fishes. Consumer demand has driven the annual capture of at least 271,430
yellow tangs, on average, in the Open Areas since 2000, with one year topping out at 386,767.40 It
has resulted in yellow tang Open Area abundance that has been depleted by 60%, on average,
compared to the natural abundance that occurs in the baseline MPAs.
Even during the financial downturn of 2007/2008, consumer demand for Hawai‘i ’s yellow tang
remained high, with at least 568,000 yellow tangs sold in just those two years, alone. This
documented, sustained, consumer demand provides a strong incentive for “the 10” to increase their
take well beyond their prior average and maximum take of yellow tangs.
Failure to propose mitigation and to consider reasonable alternatives
The erroneous conclusion that the action causes no significant adverse effects causes the EIS to fail
to meet a number of requirements for acceptance, including the proposal and consideration of
mitigation and reasonable alternatives. None of the proposed alternatives meet the requirements to
attain the objectives of the action “while minimizing some or all of the adverse environmental
effects, costs, and risks.” 41 The No Action alternative achieves the latter, and more, but the
significant beneficial impact is not disclosed and, as noted in the EIS, it fails to attain the objectives
of the action.42
The Achilles Tang and Preferred alternatives both set a daily bag limit at 5 per person, per day,
which fails to minimize any adverse effects. The outer limit would allow the 10 collectors to take a
total of 50 Achilles Tang each day, and 18,250 over 365 days. This would exceed the 2017-2018 30’
– 60’ Open Area Population of 13,796 by 4,454 fish.43 This so-called “limit” could literally lead to the
complete collapse of Achilles Tangs in the Open Areas.
Low levels of Achilles Tang recruitment over the past 11 years have been insufficient to
compensate for the existing levels of harvest.44 This serves as an example of how critically
important the science of larval dispersal and connectivity is for the future of Hawai‘i’s fish. Is the
low recruitment due to severely depleted Achilles Tang source areas? In any case, this is an
argument for essential mitigation to protect this important species with a complete prohibition on
aquarium trade take of Achilles Tang.
Examples of alternatives that would meet the requirement to minimize the impacts to targeted
species:
Place-based Management Alternative #1: This alternative would include total take limits for areas
within the Open Areas, such as reporting sub-zones, bays, reefs, stretches of coastline no longer
than .5 mile, etc. aimed at restoring and maintaining natural abundance in each area, as determined
by nearby MPAs or FRAs and as approved by community members and other stakeholders.
EIS at 122
HAR 11-200-17 (f)
42 EIS at 98
43 EIS at 76
44 Walsh et al. (2020).
40
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 Place-based Management Alternative #2: This alternative would expand the areas closed to the
aquarium trade by adding new or expanding existing FRAs so that the total area closed to the
aquarium trade (FRA + MPA) in the WHRFMA is at least 80%.
Place-based Management + Marine Life Care Standards Alternative #3: This alternative would
expand the areas closed to the aquarium trade to at least 60% and would require better treatment
of marine life under the care of trade members by specifically prohibiting trade practices that
violate Hawai‘i ’s misdemeanor animal cruelty law. Alternate practices such as these would be
prescribed and required: slow decompression to prevent barotrauma instead of fizzing/swim
bladder puncture; layered thicker shipping bags lined with paper instead of fin/spine clipping;
more/enough shipping water to facilitate a maximum of 24 hours withholding of food before fish
are placed in bags and boxed for shipping instead of starvation for 3+ days – all aimed at reducing
stress to captured marine life, increasing their captive lifespans, and thus reducing consumer
demand.
Populations are not sustained in the absence of take limits that are designed to do so
The EIS repeatedly refers to the concept of “unlimited collection” as an “extreme possibility” that is
“speculative and not reasonably foreseeable.” 45 It asserts that collection would be limited under the
Preferred Alternative which limits the number of aquarium permits to be issued to 10. However,
permit limits are not take limits. Without take limits that are tied to precise locations where the
take occurs, nothing prevents one, five, or ten permit holders, from collecting all of the individuals
among the 40 White List species from any reef where they dwell. And further, nothing prevents
those collectors from taking the same action on reef after reef in the WHRFMA, with the very real
potential to permanently deplete, to the point of collapse, the natural abundance of targeted reef
fish species in areas along the coastline.
This possibility is neither speculative, nor unforeseeable. As described below, unlimited aquarium
collection has already significantly contributed to the collapse of yellow tang abundance in at least
one large area in Hawai‘i, on O‘ahu’s leeward coastline.
Without any proposed or implemented limits on take levels, consumer demand becomes the
driving force in determining the abundance of this important reef fish for Hawai‘i’s threatened coral
reef ecosystems and the tens of thousands of Hawai‘i Island residents who depend upon them.
When consumer demand is allowed to determine levels of take, disaster can strike at any time,
especially in today’s world with climate change, and its projected increasing frequency of
hurricanes and coral bleaching, barreling down upon us.
Hawai‘i has already experienced, and is still suffering from, the impacts of overzealous commercial
aquarium collection following a natural disaster. A white paper by DAR and UH researchers
documents the devastating impacts of unleashed and unlimited commercial aquarium collecting on

45

EIS at 337, 339, 1719, …

13

 vulnerable yellow tang populations, and their subsequent collapse after Hurricane Iwa, which to
this day, have not recovered.
The paper documents that “In the weeks following the storm, . . . many fish had migrated to areas that
escaped major damage. . . With the loss of collecting habitat, collectors concentrated their efforts in
those sites still economically utilizable. . .” “The net result was that storm effects combined with
overfishing resulted in the collapse of the aquarium fishery along [the leeward] portion of the
O‘ahu coastline.”46
Prior to 1983, aquarium collectors reported taking upwards of 23,000 yellow tangs a year in those
areas. Within three years of Hurricane Iwa, reported catch had dropped by more than 90%. Since
1986 reported yellow tang catch in that area has ranged from 2,000 – 6,000 per year (Fig. 3 and 4).
With no oversight from DLNR in the ensuing years, constant collection pressure, driven by
consumer demand, has prevented any former abundance from returning to O‘ahu’s leeward coast,
because aquarium collecting takes juvenile fish that are years from maturity. A sufficient number
left on the reefs would have contributed to the repopulation of the yellow tangs that were at least
four times more abundant four decades ago, before commercial aquarium collecting nearly wiped
them out completely.
Fig. 3. Catch reports document the collapse of yellow tang populations along O’ahu’s SW coastline. 47

46
47

Walsh et al. 2004
Walsh et al. (2004).

14

 Fig. 4. Map of area encompassed within aquarium catch reporting zones 401 - 413.48

Failure to Adequately Analyze Cultural Impacts
The EIS wrongly claims that “White List Species are not anticipated to significantly decline under
the Preferred Alternative. Therefore, it is not anticipated that a significant impact on cultural
resources would occur as a result of the Preferred Alternative.” This follows the conclusion in the
CIA that “cultural impacts would occur if issuance of Aquarium Permits under an alternative would
cause a significant decline in the population of a White List Species considered to be a cultural
resource, either directly through the collection of fish or indirectly through habitat impacts.”
As described above the EIS fails to accurately analyze the environmental consequences of unlimited
collection of aquatic life. Additionally, as described earlier, the EIS does contain evidence of
significant impacts to White List species, however that information is not disclosed or discussed.
This results in a failure to identify cultural impacts and to propose proper mitigation to limit such
impacts.
Applicants Failure to Respond to DLNR Comments and Questions
DLNR asked the applicant a number of critical questions and requested additional information on
both the DEA and DEIS, including, but not limited to the below. BLNR must reject the EIS given none
of these questions/comments were addressed by the applicants:
•
•

48

Why the applicant did not discuss allowable catch or catch limits;
If the applicant would be responsible for further HEPA analysis where current population
or species data was lacking, or if new information became available raising additional
concerns;

Walsh et al. (2004).

15

 •
•
•

•
•
•

Why current catch data and methods from East Hawai‘i were not discussed, including what
species and sizes are currently being captured using non-fine mesh nets;
Why the applicant did not identify long term and cumulative impacts;
That the applicant had no scientific data or basis for the reduction in Achilles Tang from 10
to 5 per day, given their populations are declining and this reduction may not be enough to
protect the population;
Why the applicant did not propose any self-regulation or additional permit conditions;
Why the applicant did not propose any measures to ensure compliance with existing laws
or rules, or to aid in enforcement given current challenges;
Why the applicant failed to discuss mortality, injury, bycatch; and the overall health of the
animals in the supply chain, and why they failed to propose any procedures to minimize loss

Failure to Address Enforcement and Compliance Concerns:
The challenges with enforcement from a resource, practical, and logistical perspective are
substantial. As noted above the EIS fails to include any suggestions on how to increase compliance,
accountability, transparency, or cooperation with DOCARE or other law enforcement. As noted by
DLNR in its DEIS comments, “enforcement and compliance needs and challenges are key factors in
the effectiveness of fisheries management, and should be analyzed as a part of the [EIS].” 49 This
issue is made especially relevant as enforcement action against 2 of the original 14 aquarium
collectors represented by the Applicant will be considered by BLNR on the same day as the instant
matter.
Notably, the current poaching case before the Board, which, to our knowledge is the first case ever
charged and brought before the Board, was solely a result of community members reporting alleged
violations. The charge did not come from any investigation by DOCARE-DLNR but through the
efforts of tipsters, concerned about our marine resources. Community members have been
documenting and reporting violations for decades without any action by DOCARE. It was only
through recent efforts and direct action by community organizations that the current case is even
before the Board and ultimately the Courts. In addition, among the original 14 aquarium collectors
seeking permits:
•

3 have been reported to DOCARE for their involvement in an alleged fraudulent reporting
scheme, likely spanning years;

•

1 was convicted of terroristic threatening after assaulting one of the signatories;

•

1 was convicted of AQ poaching approximately 20 years ago, and has since been photographed
and reported doing so again;

•

Several have been reported to DOCARE with photo and video documentation showing coral
damage from their boat anchors/chains, collecting gear, and practices;

49

EIS at 341

16

 •

All who ship fish to U.S. mainland aquarium pet trade wholesalers and retailers are allegedly
violating the Federal Lacey Act by not providing required shipping documentation;

•

1 has violated Hawai‘i County zoning laws by illegally operating a warehouse in a residential
neighborhood where he holds and packs fish for transport off-island.

Conclusion:
For the reasons explained above, as well as those found in our prior comments on the DEIS, the EIS
remains patently insufficient in its analysis of the impacts of commercial aquarium collection
permits.
A serious overhaul of aquarium fish permitting in Hawai‘i is needed.
Because currently there are not restrictions on the number of collection permits or the amount of
take per species under a fine mesh net (i.e. aquarium) permit or commercial marine license, the
impact that collection may have on target species must be evaluated before issuing permits. As
such, each aquarium collection permit or commercial marine license issued for aquarium collecting
must show the total allowable catch, per species and ideally per area (reporting sub-zone or
smaller) that permit holders must follow to prevent depleted populations of target species. Take
limits per species and per area should be calculated in conjunction with input from all stakeholders
and based on the stock assessment for each target species in the specific areas where they will be
allowed to be taken under a permit.
The legislature has decreed it the “policy of the State” that DNLR and other agencies must
“[c]onserve natural resources . . . by preserving or augmenting natural resources, and by
safeguarding the State’s unique natural environmental characteristics . . . .” 50 The Agency must also
“[e]ncourage management practices which conserve . . . all natural resources,” and encourage all
individuals “to fulfill the responsibility as trustees of the environment for the present and
succeeding generations.”51 In enacting HEPA, the State legislature found “that the quality of
humanity's environment is critical to humanity's well-being, [and] that humanity's activities have
broad and profound effects upon the interrelations of all components of the environment . . . .” 52 The
Agency simply cannot meet these mandates by continuing to allow unlimited aquarium collection,
in light of the serious environmental consequences of those permits.
Respectfully submitted,

Rene Umberger
Executive Director, For the Fishes
rene@forthefishes.org
808.283.7225
Haw. Rev. Stat. § 344-3(1).
Haw. Rev. Stat. § 344-4(2)(A), (10)(A).
52 Haw. Rev. Stat. § 343-1.
50
51

17

 Maxx Phillips, Esq.
Hawaii Director, Center for Biological Diversity
1188 Bishop Street, Suite 2412
Honolulu, Hawaii 96813
(808) 284-0007
www.biologicaldiversity.org

Kaimi Kaupiko
Kalanihale, Miloli’i
89-1831 Milolii Rd.
Captain Cook, HI 96704
(808) 937-1310

Wilfred Kaupiko
89-1196 Mamalahoa Hwy.
Captain Cook, HI 96704

Mike Nakachi
President, Moana Ohana
PO Box 4454, Kailua-Kona, HI 96745
mikenakachi@hawaii.rr.com
808-640-3871

Kealoha Pisciotta
Founder, Kai Palaoa
keomaivg@gmail.com

Keith Dane
The Humane Society of the United States
59-1764 Kohala Ranch Road, Kamuela, HI 96743
kdane@humanesociety.org
(301) 312-1489

18

 References
Asner, Greg 2020. Testimony Regarding HB2154. ASU Center for Global Discovery and
Conservation Science, Hilo, Hawaiʻi. Available at:
https://www.capitol.hawaii.gov/Session2020/Testimony/HB2154_TESTIMONY_EEPWLH_02-06-20_.PDF
Christie, et al. 2010. Larval Connectivity in an Effective Network of Marine Protected Areas. PLoS
ONE 5(12): e15715. Available at: https://doi.org/10.1371/journal.pone.0015715
Coleman, Richard 2019. Where are all the fish going? Identifying patterns of genetic connectivity
across the Hawaiian Archipelago. Hawaiʻi Institute of Marine Biology, University of Hawaiʻi,
Mānoa, Dept of Biology, National Marine Sanctuaries Webinar Series. Available at:
https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/docs/20190924where-are-the-fish-going.pdf (accessed on Jan. 7, 2020).
Noland, 1978. Ocean Research Consulting and Analysis, Ltd., Hawaii Tropical Reef Fish Study,
Tropical Reef Fish Conference. Sea Grant College Program, Working Paper No. 34. Available
at: https://www.dropbox.com/s/0e59ieyf3iyc2qg/Noland%201978.pdf?dl=0.
Stevenson TC, Tissot BN, Dierking J. 2011. Fisher behaviour influences catch productivity and
selectivity in West Hawaii’s aquarium fishery. ICES Journal of Marine Science 68:813–822.
Available from: https://drive.google.com/open?id=1K369D30-NlGFhVcoD1xcqKVf73792Yk
(accessed on May 8, 2018)
Tissot B, Hallacher L. 2003. Effects of Aquarium Collectors on Coral Reef Fishes in Kona, Hawaii.
Conservation Biology 17:1759–1768. Available at: Available at:
https://www.dropbox.com/s/bxrvruhs0743gnb/Tissot%20and%20Hallacher%202003.pd
f?dl=0.
Walsh, et al. 2013. Long-Term Monitoring of Coral Reefs of the Main Hawaiian Islands, Final Report.
2009 NOAA Coral Reef Conservation Program, Hawaiʹi Island Monitoring Report
NA09NOS4260100, 10/01/2009 – 12/31/2012. Available at:
https://dlnr.hawaii.gov/dar/files/2014/04/NOAA_2013_WHi_-Mon_-Rep.pdf (accessed on
May 2, 2018)
Walsh WJ. 2010. Report to the Twenty-fifth Legislature 2010 Regular Session. Report on the
findings and recommendations of effectiveness of the West Hawaii Regional Fishery
Management Area. Department of Land and Natural Resources State of Hawaii. Available
at: https://dlnr.hawaii.gov/dar/files/2014/04/ar_hrs188F5v2.pdf
(accessed on Jan. 3, 2020)
Walsh WJ. 2015. Report to the Thirtieth Legislature 2015 Regular Session. Report on the findings
and recommendations of effectiveness of the West Hawaii Regional Fishery Management
Area. Department of Land and Natural Resources State of Hawaii. Available at:
https://drive.google.com/open?id=1vbiSzrRHyd3HKnmusucTRcP-MGIweE2K
(accessed on May 8, 2018)

19

 Walsh WJ. 2020. Report to the Thirtieth Legislature 2020 Regular Session. Report on the findings
and recommendations of effectiveness of the West Hawaii Regional Fishery Management
Area. Department of Land and Natural Resources State of Hawaii. Available at:
http://files.hawaii.gov/dlnr/reports-to-the-legislature/2020/AR20-WHRFMA-Rpt-FY19.pdf.
Williams and Walsh, 2008. West Hawaii Aquarium Species of Special Concern, Initial Considerations
and Relevant Data. Powerpoint Presentation. Available at:
https://www.dropbox.com/s/sm4psxdgn7w2d8d/Wlliams%20and%20Walsh%202008_W
est%20HI%20Species%20of%20Special%20Concern_powerpoint.pdf?dl=0
Williams ID, Walsh WJ, Claisse JT, Tissot BN, Stamoulis KA. 2009. Impacts of a Hawaiian marine
protected area network on the abundance and fishery sustainability of the yellow tang,
Zebrasoma flavescens. Biological Conservation 142:1066–1073.
Available at:
https://drive.google.com/open?id=1f0CWb5QB7aKo0dEYJTmpIn8h7w1s0dYO
(accessed May 8, 2018)

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