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Umberger v. Department of Land and Natural Resources

Supreme Court of Hawaii

September 6, 2017



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

          William J. Wynhoff for respondent.



          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.


         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 Resources[5]; 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 invertebrates. Umberger also attested that she had "noticed a dramatic reduction in biodiversity on reefs and in the density of species of fish that are collected by the aquarium trade." Finally, Umberger opined that DLNR's current permitting practices "will have irreversible, negative consequences for Hawai'i's reef ecosystems and [her] interests in enjoying and protecting these precious areas."

         Petitioner Nakachi also submitted a declaration in support of Petitioners' summary judgment motion. Nakachi stated that he is a resident of Kailua-Kona on the island of Hawai'i and a scuba diving tour operator since 1987 who has gone on tens of thousands of scuba dives, both recreationally and as part of his scuba diving tour business, in and around Hawai'i waters for the past forty years. According to Nakachi, his "recreational and aesthetic interests in seeing healthy reef ecosystems full of colorful fish are harmed by aquarium collection under the challenged permits." Nakachi also averred that his economic interests are harmed because his business relies on a healthy marine environment in order to be successful. Nakachi described his experience in which a dive site that was once populated by colorful fish species experienced a decline in the fish population and coral damage when aquarium collectors discovered the dive site's location.[11] Over the years that he had spent diving in the waters of Hawai'i, Nakachi observed "negative changes on the coral reefs . . . because of aquarium collection, particularly along the west coast of the island of Hawai'i." Based on Nakachi's diving experience in State waters, he declared that "[t]here is a very noticeable difference in aquarium fish species' populations and coral damage between the areas that are open to collection and the areas that are closed." Nakachi averred that his clients "have expressed concern . . . about the changes they see on the coral reefs where they dive, " the fact that there are fewer fish in the reefs, and damaged corals. According to Nakachi, these concerns had prompted his clients not to dive in Hawai'i anymore. Nakachi echoes Grabowsky's description of the technology he had observed aquarium collectors use over the years, see supra. Based on the decline that he had witnessed in aquarium fish population and the health of corals where he dives, Nakachi stated that he is "afraid that [the] reef ecosystems will continue to decline until they are not able to sustain marine life anywhere near the previous levels."

         Petitioners Ka'imi Kaupiko and Wilfred "Willie" Kaupiko also submitted declarations in support of Petitioners' summary judgment motion. The Kaupikos are Native Hawaiian subsistence fishermen living in the village of Miloli'i, which is located on the west side of the island of Hawai'i. They attested that their cultural, subsistence, and aesthetic interests are harmed by DLNR's issuance of aquarium collection permits without first engaging in HEPA review "because aquarium collectors remove species of fish that [they] fish for" and because they had "noticed a substantial decline in the variety and number of fish on reefs along the west coast of Hawai'i over the past decade." Based on the Kaupikos' experience, when they had gone out fishing, they had hardly seen any types of fish that are collected by the aquarium trade, even in areas near Miloli'i that are closed to collection.[12]

         Ka'imi Kaupiko stated that the dwindling number of fish affects his ability to feed himself and his family and negatively impacts the ecosystem of which they are a part. Ka'imi also declared that he had noticed coral dying after being damaged by boat anchors and pollution and that "removal of fish for aquarium collection further disrupts an already-stressed ecosystem." Ka'imi attested that "[t]he reefs on the west coast of the island of Hawai'i do not look as healthy as they used to" and that he is "worried about the ability of [the] reef ecosystems to survive so that future generations can continue fishing and practicing . . . Native Hawaiian traditions."[13]

         The Kaupikos concluded that aquarium collection under the challenged permits affects their ability to catch fish for food, disrupts the ecosystem, hurts the reef s ability to withstand harm from things like pollution and physical damage, and harms their cultural, subsistence, recreational, and aesthetic interests, as well as their ability to use, enjoy, and protect the ocean and coral reefs for future generations' use and education.

         Marjorie Ziegler, the Executive Director of Petitioner Conservation Council for Hawaii, and Miyoko Sakashita, a staff member of Petitioner Center for Biological Diversity (CBD), submitted declarations stating that the members of their respective organizations are harmed by DLNR's aquarium collection permitting system "because it threatens to impair their aesthetic, subsistence, and recreational interests in using, enjoying, and protecting the State's reefs."[14] They further averred that "DLNR's failure to comply with its legal obligations deprives" their organizations and their "members of both the information that would be generated through the HEPA process and the opportunity to participate actively in the process of environmental review."

         Inga Gibson, the Hawai'i State Director of Petitioner Humane Society of the United States (HSUS), declared that DLNR's issuance of aquarium collection permits without HEPA review "adversely affects HSUS's organizational interests in protecting animals from unnecessary harm, suffering, and death, as well as its members' and supporters' ability to protect, observe, and enjoy Hawai'i's coral reef animals and ecosystems that are and will be affected by collection under the challenged permits." Gibson averred that aquarium collectors remove types of fish that serve a larger role in reef ecosystems, a practice that "has negative effects on other marine species that inhabit coral reefs." Gibson also stated that HSUS views "aquarium collection as a harmful, disposable trade, because up to forty percent of fish may die before reaching their final destination and many of the collected fish are not suitable for living in captivity, surviving only a fraction of their natural lives." Gibson concluded that DLNR's permitting regime "affects HSUS's members' recreational, aesthetic and educational interests in protecting, studying, and observing these fish and invertebrates and their coral reef habitats."

         Dane Enos, a resident of Kailua-Kona and a former commercial aquarium fish collector, submitted a declaration in support of Petitioners' summary judgment motion describing the procedure he followed in collecting aquarium fish before he left the trade. Enos explained that his "decisions about which species to take and how many animals to collect were based on consumer demand." Once he received an order for a particular species from a wholesaler, he would "go out to the reefs to try and fill that order" and that "[t]he price [he] would get paid . . . would fluctuate depending on whether the wholesalers already had that particular species of fish in their shops." Enos's practice was to "operate[] on a fourteen to eighteen month system of rotation at sites where [he] collected[] to give fish time to reproduce before going back to the same spot." Enos declared that his commercial aquarium collection permit allowed him "to take an unlimited type and quantity of species from coastal waters" and "to collect anywhere in the State of Hawai'i other than in areas . . . where aquarium collection was prohibited." Enos stated that, when he first started collecting in 1985, there were not as many collectors as there were when he left the trade in 2002. At the tail end of his participation in the trade, Enos described how other collectors would take "fish from the same spot too frequently, affecting the number of animals and the balance of the ecosystem." Some collectors, according to Enos, also broke off finger corals so as to create a uniform surface for their nets. Enos attested that "after witnessing collectors over-harvesting fish and invertebrates and damaging the reefs, in addition to the stress on the reefs from other factors, like pollution, [he] decided that [he] could not continue collecting" and left the trade.

         DLNR opposed Petitioners' motion for summary judgment, reiterating its position that there is no HEPA "action" and no "approval" involved in aquarium collection and that the environment is not harmed by the current permitting system. In support of its opposition, DLNR submitted a declaration from Alton Miyasaka, averring that DLNR's Division of Aquatic Resources "continually monitors and studies populations of fish and other aquatic life potentially affected by aquarium fish permits issued pursuant to [HRS] § 188-31" and that the current population levels of aquarium fish are sustainable. Miyasaka stated that the collection "areas are quite limited, " that Hawai'i and O'ahu are the "main collecting islands, " and that Kaua'i, Moloka'i, and Lana'i "have essentially no contribution to the statewide totals and may be considered unfished." On the island of Hawai'i, Miyasaka continued, "35% of the 90-mile Kona coast is closed to aquarium collecting." However, Miyasaka stated that, although the 90-mile Kona coast "represent[s] approximately 12.6% of the total coastline of the state, [it] accounted for 68% of the statewide total catch numbers" in 2011. Miyasaka averred that the top ten areas where aquarium collection is conducted "account for 90% of all animals collected" and that "[t]hese top ten areas represent less than 22% of the entire coastline." As such, Miyasaka represented that "the vast majority of the State's coastline is largely unfished."

         Miyasaka declared that the annual total for animals caught from 1999 to 2010 ranged from 412, 587 to 1, 019, 720 per year, but he reasoned that "most of these numbers are from invertebrates rather than fish" (i.e., the ratio of invertebrates to fish ranges from 50% to close to 90% per year) . According to Miyasaka, "this is significant because invertebrates generally reproduce faster than fish and therefore can replenish themselves faster." However, Miyasaka neither addressed nor referenced Petitioners' contentions that were based on excerpts of The Report to the Twenty-Fifth Legislature and Hawaii's State of the Reef, both of which were published by DLNR. See supra notes 4 & 5. These publications stated that aquarium collection permits allow the collection of species that are particularly vulnerable to depletion and recognized the detrimental effects of removal of reef fish on the coral reef ecosystem.

         The Report to the Twenty-Fifth Legislature, on which Petitioners relied as part of their summary judgment motion, also addressed the issues surrounding the collection of invertebrates for aquarium purposes. The Report stated that researchers studying the Florida marine aquarium fishery had found that "the once small ornamental fish fishery has grown dramatically in recent years to become a large scale invertebrate-dominated industry." The researchers noted that the focus of aquarium collection shifted from "purely ornamental species to ones providing biological services in home aquaria, " such as "[i]nvertebrate grazers [that] can control algal growth." The researchers concluded that "the intensive collecting of such species was ecologically unsound."

         Miyasaka also described the process used in aquarium collection:

Typically each animal is hand caught. The collector sets [the] net, guides the fish into the net, then hand scoops the fish off the net. Each fish is carefully selected for its condition (no damage to fins or body), size, and species. Fish that are damaged or imperfect are returned to the ocean. Any fish that is not the right size, color, or species is not taken. Little or no unwanted fish are taken so there is little or no bycatch (a fish that is taken unintentionally). This attention to detail is why the marine life in the Hawaiian aquarium fishery is considered one of the highest quality products in the world.

         In their reply to DLNR's opposition, Petitioners argued that aquarium collection is an "action" and that aquarium collection permit applications require DLNR's "approval, " i.e., discretionary consent. In addition, Petitioners challenged DLNR's assertion that aquarium collection was being conducted in a sustainable and environmentally sound manner, stating that this assertion is not based on anything other than Miyasaka's conclusory declaration. Thus, Petitioners concluded that HEPA applies to aquarium collection under permits issued by DLNR.

         After a hearing on the respective parties' motions for summary judgment, the circuit court granted DLNR's motion for summary judgment and denied Petitioners' cross motion for summary judgment, reasoning that there is no applicant "action" that triggers HEPA in this case. The circuit court stated that environmental review under HEPA is required only if there is an "action, " i.e., a "program" or "project." Because "program" and "project" are not statutorily defined under HEPA, the circuit court, relying on a generally accepted dictionary, defined "program" "as a 'plan or system under which action may be taken toward a goal.'" The circuit court defined "project" 'as ''a specific plan or design; scheme' or a 'planned undertaking.'" [15]Because aquarium collection, according to the circuit court, is not a "specifically identifiable program[] or project[], " the court determined "that as a matter of law, 'aquarium collection' is not an applicant 'action' that triggers HEPA." The circuit court entered its final judgment on June 24, 2013.


         Petitioners appealed from the order denying their cross motion for summary judgment, the order granting DLNR's motion for summary judgment, and the circuit court's final judgment. In its published opinion, the Intermediate Court of Appeals (ICA) outlined the steps for evaluating whether an action is subject to environmental review. Preliminarily, there must be a "program or project to be initiated by an agency or applicant." Umberger v. Dep't of Land & Nat. Res., 138 Hawai'i 508, 512, 382 P.3d 320, 324 (App. 2016) (quoting HRS § 343-2 (2010)). In addition, the program or project must (1) be initiated by an agency or a private party and require government approval; (2) qualify under one or more of the nine categories of land uses and administrative acts enumerated in HRS § 343-5(a) (2010); and (3) not be exempt under HRS § 343-6(a)(2) (2010). LcL_ at 512-13, 382 P.3d at 324-25.

         The ICA characterized the "action" in this case as "the 'taking of marine or freshwater nongame fish and other aquatic life for aquarium purposes, ' that is initiated by an applicant's request for an aquarium fish permit." Id. at 513, 382 P.3d at 325 (quoting HRS § 188-31(a) (2011)). The ICA emphasized that while the "[a]ppellants described the alleged action as the 'directed, intentional, large-scale commercial removal under each [p]ermit, and collectively under the dozens of such [p]ermits DLNR issued, '" they sought "an interpretation of HEPA that would apply equally to both recreational and commercial aquarium fish permits." Id. at 513-14, 382 P.3d at 325-26.

         The statutory analysis of the ICA commenced with an examination of the meaning of "action." While HEPA defines "action" as "any program or project to be initiated by an agency or applicant, " the ICA acknowledged that HEPA does not define "program" and "project." Id. at 514, 382 P.3d at 326 (quoting HRS § 343-2). The ICA discussed various decisions issued by the appellate courts of Hawai'i that held there was an "action" under HEPA such that the environmental review process was triggered. Those cases involved "[t]he Napilihau Villages, Mahukona Lodge, Koa Ridge project, harbor improvements for the Superferry Project, Laumaka subdivision, and a research program concerning genetically modified algae." Id. at 516, 382 P.3d at 328. In these cases, the ICA observed that there were "specifically identifiable programs or projects." Id. According to the ICA, aquarium collection is unlike any of the activities that this court has previously considered as programs or projects for the purposes of HEPA. Id. In concluding that aquarium collection is not a "specifically identifiable program or project, " the ICA emphasized that aquarium collection "includes a parent netting one or two fish from a stream for his or her child's fish tank, as well as larger scale commercial operations." Id.

         In addition, the ICA reasoned that HEPA review is not the sole mechanism through which marine life and reef ecosystem could be protected from unconstrained removal in large numbers. The ICA highlighted other statutory frameworks and administrative rules that allow DLNR to manage aquatic life and resources, including catch limits and restrictions for certain species applicable to commercial aquarium collection permit holders and DLNR's authority to attach conditions to commercial marine licenses and permits. Id.

         Further, the ICA noted that DLNR issues permits and licenses for activities similar to aquarium collection--e.g., bait fish licenses, freshwater game fish licenses, hunting licenses, camping permits, etc. According to the ICA, there is "no rational distinction or logical reason why HEPA environmental review procedures should be required for aquarium fish permits, but not for these other types of licenses and permits." Id. Thus, the ICA concluded that aquarium collection under permits issued pursuant to HRS § 188-31 does not qualify as a HEPA "action." Id. at 517, 382 P.3d at 329.

         The ICA, however, rejected DLNR's argument "that, even if aquarium collection fell within the definition of an 'applicant action,' it is not subject to HEPA because there is no discretionary agency approval of aquarium fish permits." Id. at 517-18, 382 P.3d at 329-30. The ICA determined that the fact that the application for an aquarium fish permit is online and completely automatic does not equate to DLNR lacking discretion because the plain language of HRS § 188-31, as supported by its legislative history, explicitly confers discretion on DLNR in deciding whether to approve an application. Id. at 518, 382 P.3d at 330. The ICA also reasoned that the online application "is simply the means by which DLNR has determined to exercise its discretion." Id. Thus, the ICA affirmed the circuit court's judgment that granted DLNR's motion for summary judgment and denied Petitioners' cross motion for summary judgment. Id.


         In their application for writ of certiorari, Petitioners advance four contentions: (1) the legislature intended the words "program" and "project" to encompass a broad scope of human activity, including aquarium collection; (2) HEPA applies to individuals and provides mechanisms to resolve practical difficulties that may be encountered during the environmental review process[16]; (3) the ICA's construction of "program or project" undermines DLNR's public trust and statutory duties to conserve Hawaii's marine resources; and (4) other regulatory tools that DLNR possesses are not substitutes for HEPA, nor do such tools excuse violations of HEPA.

         In its response, DLNR contends that (1) the ICA was correct in concluding that aquarium collection is not an "action" within the meaning of HEPA; (2) the environment is not harmed by the present system and any harm to the environment is irrelevant to the analysis; (3) Petitioners' argument regarding public trust was never pleaded and, in any event, does not assist this court in construing HRS chapter 343; and (4) the ICA erred in holding that the issuance of aquarium collection permits requires DLNR's discretionary consent.


         A trial court's ruling on a motion for summary judgment is reviewed de novo under the right/wrong standard. Salera v. Caldwell, 137 Hawai'i 409, 415, 375 P.3d 188, 194 (2016). "The interpretation of a statute is a question of law reviewable de novo." Kauai Springs, Inc. v. Planning Comin'n of Cty. of Kaua'i, 133 Hawai'i 141, 163, 324 P.3d 951, 973 (2014) (quoting Franks v. City & Cty. of Honolulu, 74 Haw. 328, 334, 843 P.2d 668, 671 (1993)) .

         V. DISCUSSION

         The central question in this case is whether aquarium collection pursuant to permits issued under HRS § 188-31 (2011) and DLNR's administrative rules is subject to the environmental review provisions of HEPA. An environmental assessment under HEPA is required if three conditions are satisfied: (1) the proposed activity is an "action" under HRS § 343-2 (2010); (2) the action proposes one or more of the nine categories of land uses or administrative acts enumerated in HRS § 343-5(a) (2010); and (3) the action is not declared exempt pursuant to HRS § 343-6(a)(2) (2010). See Sierra Club v. Dep't of Transp. of the State of Haw., 115 Hawai'i 299, 306, 167 P.3d 292, 299 (2007) . In cases where the proposed action is initiated by a private party for approval by a government agency, an additional requirement is that the agency exercises discretionary consent in the approval process. HRS § 343-5(e) (Supp. 2012) . The circuit court granted DLNR's summary judgment motion and denied Petitioners' cross motion for summary judgment on the grounds that aquarium collection under HRS § 188-31 is not a HEPA "action." Thus, if there is a genuine issue of material fact as to whether aquarium collection is a HEPA "action, " then summary judgment in favor of DLNR on this basis was erroneous. If, on the other hand, there is no genuine issue of material fact that aquarium collection under HRS § 188-31 and the DLNR administrative scheme is a HEPA "action, " that it falls within one of the categories of land uses or administrative actions set forth in HRS § 343-5(a), that it is not exempt from HEPA, and that the issuance of a permit requires DLNR's exercise of discretionary consent, then the circuit court erred in denying Petitioners' cross motion for summary judgment.

         A. Whether Issuance of a Permit for Aquarium Collection is a HEPA "Action"

         1. The Plain-Language Construction of "Action" under HRS § 343-2

         To determine whether aquarium collection is a HEPA "action, " we begin by interpreting HRS § 343-2, which sets forth the statutory definition of "action." HEPA defines "action" as "any program or project to be initiated by any agency or applicant."[17] HRS § 343-2. "Program" and "project" are not defined terms under HEPA. As such, "this court may resort to legal or other well accepted dictionaries as one way to determine the ordinary meaning" of those words. State v. Guyton, 135 Hawai'i 372, 378, 351 P.3d 1138, 1144 (2015) (quoting State v. Pali, 129 Hawai'i 363, 370, 300 P.3d 1022, 1029 (2013)). "Program" is generally defined as "a plan or system under which action may be taken toward a goal."[18] "Project" is defined as "a specific plan or design" or "a planned undertaking."[19]

         In determining whether aquarium collection is a program or project, the crucial first step is properly defining the activity authorized by aquarium collection permits issued by DLNR. See Sierra Club, 115 Hawai'i at 306 n.6, 167 P.3d at 299 n.6 ("An important preliminary step in assessing whether an 'action' is subject to environmental review is defining the action itself."). HRS § 188-31(a) provides that

[e]xcept as prohibited by law, the department, upon receipt of a written application, may issue an aquarium fish permit, not longer than one year in duration, to use fine meshed traps, or fine meshed nets other than throw nets, for the taking of marine or freshwater nongame fish and other aquatic life for aquarium purposes.[20]

         This statutory subsection, together with DLNR's administrative rules, allows permit applicants to engage in two general types of activities: recreational aquarium collection and commercial aquarium collection.

         Recreational aquarium collection permits--those "issued . . . for non-commercial use, " Hawaii Administrative Rules (HAR) § 13-77-2 (effective 2015)-allow the extraction of up to "five fish or aquatic life specimens per person per day, " HAR § 13-75-14 (effective 2007). Thus, each recreational permit authorizes the collection of up to 1, 825 fish or other aquatic life within a one-year period. Id. In the case of commercial aquarium collection permits, which is intended for issuance to persons who collect "for profit or gain or as a means of livelihood, " HAR § 13-74-1 (effective 2010), DLNR has not promulgated any rules that establish limits on the total number of fish and other aquatic life that commercial collectors may extract for the entire period in which the permits are effective. See HAR § 13-75-14 (providing a total catch limit only for recreational collection).[21]

         HRS § 188-31 also clearly delineates the aquarium collection practices that must be complied with to obtain a permit when aquarium collectors are allowed to use fine meshed traps or nets to take fish and other aquatic life for aquarium purposes. Subsection (b) of HRS § 188-31 states that, "[e]xcept as prohibited by law, the permits shall be issued only to persons who can satisfy the department that they possess facilities to and can maintain fish and other aquatic life alive and in reasonable health." HRS § 188-31(b).

         The extraction of fish or other aquatic life under aquarium collection permits is also limited to "aquarium purposes, " HRS § 188-31(c), which, per the statute, "means to hold salt water fish, freshwater nongame fish, or other aquatic life alive in a state of captivity as pets, for scientific study, or for public exhibition or display, or for sale for these purposes, " HRS § 188-31(d) (1).

         Based on the language of HRS § 188-31, the framework it establishes, and the administrative rules that DLNR promulgated pursuant to HRS § 188-31, the defined activity authorized under an aquarium collection permit is as follows:

(1) the extraction annually from State waters of an unlimited number of fish or other aquatic life for profit or other gains (in the case of commercial aquarium collection) or of 1, 825 fish or other aquatic life for noncommercial purposes (in the case of recreational aquarium collection), subject to the terms and conditions of the permit and restrictions set by law;
(2) through the use of fine meshed nets or traps;
(3) by individuals who can satisfy DLNR that they possess facilities that can maintain aquatic life alive and in ...

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