Hawaii-2018-SB2003-Amended

SECTION 1. The legislature finds that hundreds of thousands of saltwater fish and other aquatic life, such as invertebrates, are annually removed from their natural ocean habitat in Hawai‘i to be kept in aquariums in homes throughout the State and country. These fish and other aquatic life are caught and sold as part of the aquarium trade industry for ornamentation and amusement, not for food purposes.

The legislature also finds that the State's aquarium fish permit authorizes the taking of an unlimited number of fish and other aquatic life for commercial aquarium purposes, and up to two thousand fish and other aquatic life annually for recreational aquarium purposes, using nets and traps containing stretched netting of less than two-inch mesh. While a fine mesh net or trap is not physically required in order to remove aquatic life for aquarium purposes, it is generally believed to be more effective than using other gear that does not require a permit, as the mesh is tight enough to keep fish from escaping. The fine mesh nets and traps can be used both near the surface of the ocean and at depths reached by scuba diving. The legislature notes that for takings that do not require an aquarium fish permit, there are generally no restrictions on the number of fish and aquatic life that can be taken for aquarium purposes. Like humans, any fish caught deep below the surface will need to decompress before being brought to the surface. The fish is then put in a bucket or other storage container to take to shore, where it will begin its journey through various temporary tanks and diverse conditions to travel across the State or to other parts of the globe.

The legislature further finds that, as a precautionary principle and since salt water fish and other aquatic life caught for aquarium purposes are not used for food purposes, it is in the best interest of the fish and other aquatic life, as well as of the reefs they inhabit, that they remain in their natural environment, not confined in aquarium tanks. Therefore, the legislature concludes that aquarium fish collecting for commercial purposes in Hawai‘i should be phased out.

The legislature acknowledges the recent litigation in Umberger v. Department of Land and Natural Resources, 140 Hawaii 500, 403 P.3d 277 (2017) and subsequent order after remand by the circuit court issued on October 27, 2017, that resulted in the invalidation of all existing aquarium fish permits used for commercial aquarium collection purposes. The circuit court also found that the department of land and natural resources' practice of issuing commercial aquarium collection permits without an environmental review as required by the Hawaii Environmental Policy Act was a violation of that Act, and thus enjoined the department from issuing or renewing aquarium fish permits to commercial collectors until further order of the circuit court. Collecting for recreational purposes was not affected by the circuit court's order.

To phase out commercial collecting while also protecting existing businesses, this Act will allow the department of land and natural resources to issue new aquarium fish permits, to be used for commercial purposes, during a four-month window beginning on the lifting of the Umberger v. Department of Land and Natural Resources injunction, if it is lifted. The department of land and natural resources will be prohibited from issuing new aquarium fish permits for commercial and non-commercial purposes after that four-month window. Permits will be able to be transferred for a period of five years to commercial collectors who also possess a commercial marine license. Non-commercial collectors, whether with nets or traps allowed by the aquarium fish permit or by other means not requiring an aquarium fish permit, will be held to the existing collection limit of five aquatic specimens per day.

This Act is not, however, intended to encourage residents and tourists to go into the water to view or catch aquarium fish unless sufficient safety measures and adequate environmental precautions are taken. Furthermore, this Act is not intended to overrule the Hawai‘i supreme court's decision in Umberger v. Department of Land and Natural Resources and the subsequent circuit court order upon remand, nor negate the State's constitutional and statutory obligations to conserve fishery resources in the State.

The purpose of this Act is to:

(1) Prohibit the department of land and natural resources from issuing new aquarium fish permits to take aquatic life for commercial or non-commercial aquarium purposes, except for a period of four months if the injunction order as a result of Umberger v. Department of Land and Natural Resources, if applicable, is lifted;

(2) Phase out the taking of aquatic life for commercial aquarium purposes by any method of catch, though allowing aquarium fish permits to be annually renewed by individuals possessing a commercial marine license and, for a period of five years after the injunction order as a result of Umberger v. Department of Land and Natural Resources, if applicable, is lifted, transferrable to another individual who possesses a commercial marine license;

(3) Continue to allow the taking of aquatic life for non-commercial aquarium purposes using certain nets or traps with an aquarium fish permit, and clarify that non-commercial aquarium collecting by any method of catch is subject to a limit of five fish or aquatic life specimens per person, per day; and

(4) Allow a commercial marine licensee to assist another commercial marine licensee who holds a valid, non-lapsed aquarium permit with the taking of aquatic life for commercial aquarium purposes.

SECTION 2. Section 188-31, Hawaii Revised Statutes, is amended to read as follows:

"§188-31 Permits to take aquatic life for aquarium purposes[.]; prohibitions. (a) [Except 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.] It shall be unlawful for a person to take saltwater fish, freshwater nongame fish, or other aquatic life for commercial aquarium purposes by any method of catch without possessing a valid, non-lapsed aquarium fish permit and a commercial marine license, as defined in section 187A-1; provided that the taking is not otherwise prohibited by law.

(b) It shall be unlawful for a person to use fine meshed traps or fine meshed nets, other than throw nets, to take saltwater fish, freshwater nongame fish, or other aquatic life for non-commercial aquarium purposes without possessing a valid, non-lapsed aquarium fish permit. The taking for non-commercial aquarium purposes, whether pursuant to an aquarium fish permit or by other means of take, shall be limited to no more than a combined total of five saltwater fish, freshwater nongame fish, or other aquatic life specimens per person, per day.

(c) The department of land and natural resources may issue new aquarium fish permits for commercial or non-commercial aquarium purposes for a four-month period beginning on the effective date of this subsection pursuant to section 5 of Act , Session Laws of Hawaii 2018. Upon receipt of a written application, the department may issue an aquarium fish permit that is valid for a period not to exceed one year for the taking of saltwater fish, freshwater nongame fish, or other aquatic life for commercial or non-commercial aquarium purposes. Subsequent to the four-month period, the department of land and natural resources shall be prohibited from issuing new aquarium fish permits, whether for commercial or non-commercial aquarium purposes.

(d) Unless otherwise prohibited by law, the department of land and natural resources may renew on an annual basis an existing aquarium fish permit; provided that the existing permit has not lapsed at the time of the renewal and complies with subsection (f).

(e) Unless otherwise prohibited by law, for a period of five years beginning upon the effective date of subsection (c) pursuant to section 5 of Act , Session Laws of Hawaii 2018, the department of land and natural resources may transfer an existing aquarium fish permit; provided that the permit has not lapsed at the time of transfer and complies with subsection (f).

[~~(b)~~] (f) Except as prohibited by law, [~~the~~] new aquarium fish permits shall be issued only in accordance with subsection (c) to, and non-lapsed aquarium fish permits shall be renewed only in accordance with subsection (d) by or transferred only in accordance with subsection (e) to, persons who [~~can~~]:

(1) Can satisfy the department of land and natural resources that they possess facilities to and can maintain fish and other aquatic life alive and in reasonable health[.]; and

(2) Have not been convicted of the offense of animal cruelty in the second degree under section 711-1109 within a five-year period prior to the issuing, renewing, or transferring of the aquarium fish permit.

[~~(c)~~] (g) It shall be illegal to sell or offer for sale any saltwater fish, freshwater nongame fish [~~and~~], or other aquatic life taken under an aquarium fish permit unless those fish [~~and~~] or other aquatic life are sold alive for aquarium purposes.

The department may adopt rules pursuant to chapter 91 for the purpose of this section.

(h) This section shall not prohibit any commercial marine licensee, as defined in section 187A-1, from assisting another commercial marine licensee who holds a valid, non-lapsed aquarium fish permit with the taking of any saltwater fish, freshwater nongame fish, or other aquatic life for commercial aquarium purposes; provided that the assistance does not involve the use of any gear, equipment, tools, or other means to take saltwater fish, freshwater nongame fish, or other aquatic life for aquarium purposes.

(i) Nothing in this section shall be construed to alter the State's constitutional and statutory obligations to conserve the fishery resources of the State pursuant to article XI, sections 1 and 6, of the Hawaii State Constitution.

[~~(d)~~] (j) For the purposes of this section:

[~~(1)~~ "Aquarium purposes" 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; and

~~(2)~~] "Aquarium fish permit" means a permit issued by the [~~board~~] department of land and natural resources for the use of fine mesh nets and traps, other than throw nets, to take [~~salt water~~] saltwater fish, freshwater nongame fish, or other aquatic life for aquarium purposes.

"Aquarium purposes" means to hold saltwater 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.

"Commercial aquarium purposes" means the taking of marine life for aquarium purposes for profit or gain or as a means of livelihood where the marine life is taken in or outside of the State, or where the marine life is sold, offered for sale, landed, or transported for sale anywhere in the State.

"Fine mesh", or "fine meshed", means stretched mesh of less than two inches, as used in netting to collect saltwater fish, freshwater nongame fish or other aquatic life.

"Lapsed" means an aquarium fish permit issued by the department of land and natural resources that has not been renewed prior to the expiration date of the permit or has not been renewed for five or more years immediately preceding the time of the transfer of the permit.

"Non-commercial aquarium purposes" means the taking of marine life for aquarium purposes for recreation and not for profit or gain nor as a means of livelihood."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2018; provided that section 188-31(c), Hawaii Revised Statutes, under section 2 of this Act shall take effect upon the date that the injunction order as a result of Umberger v. Department of Land and Natural Resources, 140 Hawaii 500, 403 P.3d 277 (2017), is lifted, or the final disposition of Umberger v. Department of Land and Natural Resources, whichever occurs earlier.

THE SENATE	S.B. NO.	2003
TWENTY-NINTH LEGISLATURE, 2018		S.D. 1
STATE OF HAWAII